Innlegg om Kosovo for Haag-domstolen

1. Mr. President, distinguished Members of the Court, I have the honour of appearing before you on behalf of the Government of Norway in the present oral proceedings related to the request of the General Assembly for an advisory opinion.

2. Norway welcomes this opportunity to appear before this Court, the principal judicial organ of the United Nations. Our fundamental concerns and approach are solely dictated by the need to contribute to international peace and stability in the region, in accordance - and I would like to underline that in accordance - with  international law. We are convinced that the Court will contribute to these objectives when considering the question before it.

3. Norway hopes that the Republic of Serbia and the Republic of Kosovo will soon be able to integrate relevant European institutions. We hope that they will fully take part in the project of helping the region to put its troubled past behind it. As also stated in the Statute of the Council of Europe, the aim must be to achieve greater unity between States (84). The purpose must be to safeguard and realize the ideals and principles which are their common heritage and facilitate their economic and social progress.

4. Mr. President, Members of the Court, a number of oral statements have eloquently led us through the arguments previously submitted in two rounds of written contributions. In some cases they have also usefully provided further in-depth analysis of particular questions that have been raised. Aiming as far as possible for conciseness is in line with the practice directions of the Court. I will not therefore repeat the factual background as provided in our Written Statement of the 16 April this year, nor will I rephrase the views of my Government, a summary of which is provided in our Written Comments of 6 July this year. In these, we concluded that the Declaration of Independence issued on 17 February 2008 does not contravene any applicable rule of international law.

5. The arguments that I now submit will only address particular questions that would seem to be pivotal points in the structure of arguments presented in these proceedings. These seem to us to revolve around, first, the exact nature of the question put to the Court; second, the rules applicable to unilateral declarations of independence, if any; and, finally, the question as to whether Security Council resolution 1244 (1999) exceptionally contained prohibitions that made the Declaration of Independence of 17 February 2008 contravene an applicable rule of international law. I will not give references during my presentation; these are included in the text handed to the Registry, and will appear in the transcript.

The request contained in General Assembly resolution 63/3

6. Mr. President, Members of the Court, I would first like to consider the exact nature of the request put to the Court. An initial question is related to the assertion that “a great majority of States participating in the present proceedings” accepts that there are no reasons that would prevent the Court from exercising its advisory jurisdiction (85). In our view, this somewhat sweeping statement requires further qualification. The vote on resolution 63/3 in the General Assembly of the United Nations on 8 October 2008 was in itself an indication by the international community of the need to pause to reflect and exercise due caution. 

7. In the vote 74 Member States abstained, 35 refrained from participating, and six voted against the draft resolution. In other words, 115 Member States of the United Nations did not support the resolution.

8. In addition, we would like to recall that it is not possible to equate the 77 votes in favour of the resolution with opposition to the Declaration of Independence. Our own vote is evidence of that. Our being in favour of the request to the Court did not signify any such opposition or, as stated in our explanation of vote, that the matter was considered to have a bearing on Norway’s recognition of the Republic of Kosovo  86.

9. We held it to be in keeping with basic principles of fairness in international law that the Republic of Serbia be given this opportunity to express and explain its position, as would be the case for the representatives of the Republic of Kosovo. In voting in favour of the draft resolution, Norway was furthermore confident that the Court will carefully analyse the question put to it and respond accordingly, and on the basis of established rules of international law.

10. Mr. President, Members of the Court, the question put before the Court is both specific and limited in scope. It concerns only the Declaration of Independence that was issued on 17 February last year. In its 2007 Advisory Opinion on the Wall, the Court confirmed that it had to limit itself to the confined question the General Assembly had chosen to put to the Court, and “only examine other issues to the extent that they might be necessary to its consideration of the question put to it” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 160, para. 54). An assessment as to whether the Declaration of Independence is in accordance with international law is distinct from issues of statehood or recognition. We cannot fail to note, however, some significant and undisguised departures from the question put before the Court, in particular during the presentation made by Professor Shaw on the first morning of these oral proceedings (87).

11. The question put to the Court, albeit specific, gives in turn rise to certain derivative question marks. As stated in its 1975 Advisory Opinion on Western Sahara, the Court must satisfy itself that questions put to it are “relevant and have a practical and contemporary effect and, consequently, are not devoid of object or purpose” (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 37, para. 73) (88). This conflict-ridden area in the region has experienced indisputably positive developments in the almost two years that have passed since the Declaration was issued. Furthermore, as many have pointed out, 63 States have so far recognized the Republic of Kosovo. Norway is confident that all the relevant circumstances will, also in light of the guidance provided in the Western Sahara Opinion, be carefully weighed and considered by the Court when formulating its opinion.

12. We also note, in this context, another question mark. The formulation of the question put to the Court seems to presume that it was the Provisional Institutions of Self-Government of Kosovo, acting as such, i.e., acting in an organic capacity, that issued the Declaration of Independence. We respectfully maintain otherwise (89).

The nature of the Unilateral Declaration of 17 February 2008

13. Turning now to the nature of the Declaration of 17 February 2008, we have expounded in our written contributions its particular form, content and circumstances, as well as the background for its adoption (90). The evidence before us clearly supports the view that neither the authors nor the document itself purported to enact organic powers of the Provisional Institutions of Self-Government of Kosovo, as referred to in Security Council resolution 1244 (1999) and the Constitutional Framework of 2001.

14. Instead, the Declaration has been taken by Norway to be a statement of democratically elected leaders, on a par with that of members of a constituent assembly, whose explicit aim is to express the will of the people (91).

15. Serbia’s Written Statement in April this year referred also, on its part, to the authors of the Declaration being “members of the Assembly of Kosovo who adopted the document on 17 February 2008” (92). This quite precise choice of words, “members who adopted”, including the personal pronoun used, refers to action carried out by persons, an indeterminate number of individuals, as opposed to acts of any organs. Overall, we believe there is ample confirmation of the reality of the social facts before us.

16. Moreover, we maintain that a declaration of independence is not, as such, the object of regulation by public international law (93) By this, we do not advocate legal arbitrariness, we do not advocate any abdication of the rule of law. We do not speak in favour of carving out a domaine réservé for politics in hard cases of international law. On the contrary, considering such a declaration as inherently being a social and political fact follows from the structure of international law, and is based on its established practice. And I say this not only because I represent a State whose modern political history and international relations follow the unilateral declaration of the dissolution of the Union between Norway and Sweden, made by the Norwegian Parliament on 7 June 1905. Significantly, we would like to underline that considering any unilateral declaration of such nature as a political fact and not as the object of regulation by public international law is not the same as accepting, condoning, denying or encouraging secession.

17. Mr. President, Members of the Court, declarations of independence do not “create” or constitute States under international law. It is not the issuance of such declarations that satisfies the factual requirements, under international law, for statehood or recognition. Under international law, such declarations do not constitute the legal basis for statehood or recognition.

18. It is not to say that the Security Council cannot take explicit action requiring, for example, non-recognition of a situation as it notably has done in the context of blatantly unlawful use of armed force. The Council did so notably in resolution 541 with regard to the declaration in November 1983 of the establishment of the so-called “Turkish Republic of Northern Cyprus”. It did so in resolution 662, as regards the Iraqi annexation of Kuwait in August 1990. But there is no such situation here, and no such action has been taken by the Security Council with regard to Kosovo.

19. Permit me to briefly repeat that it is necessary to distinguish between declarations of independence — which usually challenge a domestic legal order — and issues of statehood or recognition, which depend on separate factual assessments under international law. To claim otherwise would also be to blur the various and necessary requirements for establishment of international legal personality or attribution of responsibility. This would also have broader consequences as to the concept of recognition itself, which is fundamentally based on an acceptance by a State of an existing situation, occurring in its relations with other States (94). This is also clearly illustrated by the international practice of recognition of governments coming to power abnormally and in a revolutionary manner, which is not an issue here, but nevertheless is amply covered in the standard textbooks, such as Oppenheim’s International Law (95).

20. In the 2007 Bosnia and Herzegovina Judgment, the Court itself referred to a number of unilateral declarations of independence that were made in the former Yugoslavia. These included — and were not limited to — the first resolution by the Parliament of Bosnia and Herzegovina on 14 October 1991 and the official declaration of independence of the latter Republic on 6 March 1992 (96). In its account of the facts, the Court differentiated between unilateral proclamations of independence, the enjoyment of some de facto independence, including de facto control of substantial territory, and international recognitions as sovereign States. And in doing so the Court also recalled that the validity of certain declarations of independence had been contested, and put before the Badinter Commission (97). The latter did not find any reason to examine the alleged legality or illegality of the declarations (98). In fact one could add that a similar approach was actually taken by the Security Council in resolution 787 (1992) when, in the concrete circumstances obtaining at the time in the Republic of Bosnia and Herzegovina, it affirmed “that any entities unilaterally declared . . . will not be accepted” (99). This formulation underscores the object of the concrete measures adopted by the Council under the circumstances at hand. Resolution 1244 does, in any case, not provide for any such measure.

21. Moreover, we have on a general basis questioned whether a resolution of the Security Council actually imposes direct international legal obligations on non-State actors (100). States have international legal personality as well as the legal obligations referred to in Articles 25 and 103 of the Charter. Individuals may be held responsible for breaches of international humanitarian law and criminal law, and certain other international legal rules setting out obligations and responsibilities may apply directly to them. Nevertheless the emergence of legal obligations and responsibilities incumbent on non-State actors is limited and it is carefully circumscribed. Such international legal obligations and responsibilities for non-State actors can at any rate not be assumed without a clear legal basis in international law. We have recently seen certain concrete measures or demands adopted by the Security Council, in the context of internal armed conflict, that have been directed also against non-State entities. This does not signify, however, that international legal obligations, nor attribution of responsibility for internationally wrongful acts, can suddenly be inferred to apply to such entities.

22. In the context of an analysis of the principle of territorial integrity, our learned colleague Professor Shaw, on the first day of those oral proceedings, stated that “international practice now clearly regards non-State entities as direct subjects of international law” and that the “classical structure of international law has changed” (101). These are quite sweeping assertions that made us carefully consider the basis for such claims.

23. In the bulk of the resolutions of the Security Council that were invoked to support that claim, the Council basically reaffirmed in preambular paragraphs its own commitment to, or its respect for, territorial integrity, or it generally reaffirmed the importance of the principle. This was the case for the resolutions referred to on the situations of the Democratic Republic of the Congo, Iraq and Somalia (102). The provisions referring to non-State actors in these resolutions largely confirm the role of States holding violators of breaches of international humanitarian and criminal law accountable (103), or they call on all parties in internal armed conflict and peace negotiations to respect their commitments to particular agreements (104). We thus do not see any convincing evidence in the resolutions invoked of any such change in the structure of international law as announced by Professor Shaw.

24. Furthermore, particular emphasis was put by him on resolution 787 of 16 November 1992 concerning the situation in Bosnia and Herzegovina. The exact quotation is, however, that the Security Council “strongly reaffirm[ed] its call on all parties and others concerned” (emphasis added) to respect the territorial integrity of Bosnia and Herzegovina (105). What was the context and import of this reaffirmation?

25. A reaffirmation follows from a previous affirmation: in resolution 752 of 15 May 1992 the Council had made a similar demand, but this also included “that all forms of interference from outside Bosnia and Herzegovina, including units of the Yugoslav People’s Army as well as elements of the Croatian Army, cease immediately, and that Bosnia and Herzegovina’s neighbours take swift action to end such interference” (emphasis added) (106). This was repeated again in resolution 787 and underscores the international nature of the threats to the territorial integrity of Bosnia and Herzegovina (107). The resolution further called on “all other concerned parties in the former Yugoslavia” to immediately fulfil their obligations (108). We thus see here how the principle of territorial integrity continues to regulate inter-State relations.

26. And in its 2007 Bosnia and Herzegovina Judgment the Court also found it established that, following the official withdrawal in May 1992 of the Yugoslav People’s Army from the Republic of Bosnia and Herzegovina, considerable foreign military support was still being made available to entities within the Republic (109). Against this background, we really do not find the reference to resolution 787 to be conclusive as regards any change in the structure of international law. Instead, we incidentally find a large measure of support for the opposite view. We have thus found no basis for stating that international legal obligations are directly applicable to non-State actors, at least without a clear and express basis for doing so (110).

27. Mr. President, Members of the Court, any declaration of independence is by its very nature unilateral. It will appear to be a colliding political claim to legitimacy; it will appear to be challenging an existing domestic legal order. However, the Declaration that was issued on 17 February 2008 can hardly be characterized as unilateralist action. It does not contain any single element, let alone any exhortatory language, that invokes or speaks in favour of a general or a specific right to secession. On the contrary, it refers to a lengthy process of multilateral diplomacy that had repeatedly failed and it referred to the full and undivided acceptance of all the recommendations issued by the Special Envoy of the Secretary-General of the United Nations, and subsequently endorsed by the Secretary-General himself. Most of the Declaration actually contains an expression of commitments as to future respect for international legal norms, human rights protection and endorsement of all guarantees for the Serbian minority and the Serbian Orthodox Church in Kosovo, that all were contained in the recommendations of the Special Envoy. Let alone on other bases, we see no precedential value as regards any right to secession in this text nor, as we shall see, in the sequence of events that led to the issuance of this Declaration.

28. Also the commitments expressed in the declaration illustrate the document’s particular nature. When the Court invited Member States to furnish information likely to shed light upon the questions submitted, we included, on our part, in an Annex to our Written Statement of April this year the Norwegian Royal Decree adopted by the King in Council on 28 March 2008. The Royal Decree highlighted the extraordinary situation facing the international community due to the long-standing impasse in Kosovo and the legal basis for our recognition of the Republic of Kosovo. Moreover, in so far as the Declaration subsequently was referred to by authoritative representatives of the Republic of Kosovo, its contents then became part of a binding unilateral declaration under international law, of the nature of an Ihlen Declaration (111).

Security Council resolution 1244 (1999) does not prohibit the unilateral declaration of independence   

29. Mr. President, Members of the Court, we have shown why we do not consider a declaration of independence to be the object of regulation by public international law. I now turn to the residual question as to whether Security Council resolution 1244 exceptionally contained particular prohibitions that would make a declaration of independence of Kosovo on 17 February 2008 contravene an applicable rule of international law (112).

30. Resolution 1244 decided in paragraph 1 that a political solution to the Kosovo crisis shall be based “on the general principles in annex 1 and as further elaborated in the principles and other required elements in annex 2”. Both these Annexes require “taking full account of the Rambouillet accords”, to which also paragraph 11 (e) of the resolution makes reference (113). The Rambouillet Accords had explicitly identified the “will of the people” of Kosovo as one of the key relevant factors constituting the basis for considerations of a final settlement for Kosovo (114). There is, therefore, incidentally no need in this case to undertake any further analysis of the principle of self-determination in international law. Resolution 1244 establishes, in the confined context of Kosovo, the unequivocal relevance of the will of the people of Kosovo in the determination of Kosovo’s future status. The history that led to the situation was precisely and eloquently summarized by H.R.H. Prince Zeid Raad Al Hussein of Jordan this morning. And this is fully confirmed by the Statement made by the Contact Group on The Future of Kosovo in London on 31 January 2006: “Ministers look to Belgrade to bear in mind that the settlement needs, inter alia, to be acceptable to the people of Kosovo.” As noted by Finland yesterday, the import of this language is unmistakable. The formulation was agreed by all concerned, including the representative of Russia (115).

31. The issue of Kosovo’s final status was put on the Security Council’s agenda in October 2005, as recommended in a report produced by Ambassador Kai Eide after a thorough review of the situation had been carried out (116). A competent mechanism was thereafter established in November 2005 in accordance with resolution 1244, under the leadership of former President Ahtisaari of Finland, the Special Envoy of the Secretary-General, to lead the political process designed to determine Kosovo’s future status, bearing in mind its fundamental importance for international peace and security. We respectfully refer to the exhaustion in March 2007 of negotiations and other diplomatic initiatives under this competent multilateral mechanism, followed by yet other efforts, as referred to in our own Royal Decree of 28 March 2008. We do recall, yet again, that the determination of both the pace and the duration of the future status process was entrusted to the Special Envoy, not to any other institution or body. His terms of reference provided explicitly for such powers (117). This factor and the final assessments made by the competent mechanism established in accordance with resolution 1244 were deemed by Norway to be particularly pertinent in the legal and political analysis of subsequent factual events (118).

32. Holding any view to the contrary might in fact have amounted to inferring that, under the particular circumstances that had evolved over time, the international community and, ultimately, the international military presence in Kosovo, would have had to repress the expression of the will of the people of Kosovo - the will expressed by democratically elected representatives of its people, in the impasse that had long been reached and had been steadily deepening. Monsieur le président, membres de la Cour, comme l’a dit fort bien Madame Belliard de la France ce matin, la déclaration n’était pas «la cause mais la conséquence de [l’]échec» du processus multilatéral. We also note that none of the competent organs established under resolution 1244, nor the Secretary-General of the United Nations nor the Security Council, have expressed the view that the Declaration or the events of 17 February 2008 contravened international law. Mr. President, Members of the Court, for the reasons I set out, resolution 1244 could simply not be read to that effect.

33. We are sensitive to the words of late Judge Manfred Lachs, when he stated that “(i)n law we must beware of petrifying the rules of yesterday and thereby halt progress in the name of process. If one consolidates the past and calls it law he may find himself outlawing the future”. (119) We subscribe to the vision he hereby encapsulated. At the same time, however, the very particular framework established by resolution 1244 of the Security Council, and the unique background and sequence of events that has been documented in the course of these proceedings do not really require any fear of petrification of rules of the past or any outlawing of the future. We respectfully cannot see that the question put to the Court requires any determination of issues pertaining to the general principles of territorial integrity or of self-determination, nor does it require any precedent setting in this regard.

34. Norway is fully confident that the Court will exercise due caution in considering the issues concerned. Almost two years have passed since the Declaration of Independence was issued. The situation in the region is developing in ways that bear a promise of a future of prosperity and peace for all populations in the region. The Court is, at the same time, well aware of the risks inherent in local narratives or simplified portrayals which may deepen rather than heal existing wounds, exacerbate latent tensions instead of promoting reconciliation, and adding in such a case yet another painful chapter to the history of the Balkans.

35. Mr. President, Members of the Court, before I conclude, allow me to briefly summarize the following three key points: firstly, the question put to the Court is specific and limited in scope; second, the Unilateral Declaration is not, as such, the object of regulation by public international law; and thirdly, and finally, Security Council resolution 1244 does not prohibit the issuance of the Declaration of 17 February 2008. Those are our three key points.

36. Furthermore, I should like to refer yet again to the unequivocal reference to the “will of the people” in the legal framework established by resolution 1244 under Chapter VII of the Charter and to the particular international mechanism entrusted, in accordance with that resolution, with the task of leading and of deciding the duration of the process designed to determine Kosovo’s future status. It is in our view therefore not necessary for the Court to consider on a general basis the principles of territorial integrity and of self-determination in order to respond to the confined question put to it by the General Assembly.

37. For the reasons set out in our submissions, Norway respectfully upholds its request that the Court find that the Declaration of Independence issued on 17 February 2008 does not contravene any applicable rule of international law.

38. Mr. President and distinguished Members of the Court, this brings me to the end of the oral submissions which I am making on behalf of the Kingdom of Norway, and I thank you for the opportunity that you have afforded me of addressing you. 

Noter

84 Statute of the Council of Europe, 5 May 1949, Art. 1 (a), UNTS, Vol. 87, p. 103.

85 CR 2009/24, p. 36, para. 2 (Djeri, Serbia).

86 Official Records of the General Assembly, Sixty-Third Session, Twenty-Second Plenary Meeting, A/63/PV.22, 8 Oct. 2008.

87 CR 2009/24, for example, p. 74, paras. 33-36 (Shaw, Serbia).

88 See also Written Comments of France, pp. 4-10, paras. 10-23.

89 Written Statement of Norway, pp. 5-6, paras. 13-15, as well as Written Comments, p. 4, paras. 9-11.

90 Written Statement, pp. 5-6, paras. 13-15, as well as Written Comments, p. 4, paras. 9-11. For a photographic reproduction of the Declaration, see Written Contribution of Kosovo, Ann. 1, pp. 207-209.

91 Written Statement, p. 6, paras. 14-15; Written Comments, p. 4, paras. 11-12. - 

92 Written Statement of Serbia, p. 25, para. 17.

93 Written Statement, p. 5, paras. 9-10.

94 Robert Jennings and Arthur Watts (eds.), Oppenheim’s International Law, 9th ed., 1992, Vol. 1, p. 127, para. 38.

95 Ibid., pp. 148-150, para. 44.

96 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (hereinafter referred to as the 2007 Bosnia and Herzegovina Judgment), p. 138, paras. 233-234.

97 Ibid., p. 138, para. 233 (Opinion No. 1 of the Arbitration Commission of the Conference on Yugoslavia, p. 3).

98 See, inter alia, CR 2009/25, p. 41, para. 22 (Müller, Kosovo).

99 Security Council resolution 787 (1992), 16 Nov. 1992, para. 3.

100 Written Comments, p. 5, para. 13.

101 CR 2009/24, pp. 66-67, paras. 8-12 (Shaw, Serbia).

102 Security Council resolution 1756 (2007), preambular para. 2; resolution 1771 (2007), preambular para. 2; resolution 1766 (2007), preambular para. 3; resolution 1784 (2007), preambular para. 3; resolution 1830 (2008), preambular para. 2 ; resolution 1846 (2008), preambular para. 3. 

103 E.g., resolution 1846 (2008), paras. 14-15.

104 E.g., resolution 1784 (2007), para. 3.

105 Resolution 787 (1992), para. 3.

106 Resolution 752 (1992), para. 3.

107 Resolution 787 (1992), para. 5.

108Resolution 787, para. 4.

109 2007 Bosnia and Herzegovina Judgment, p. 142, para. 241 (“The Court finds it established that the Respondent was thus making its considerable military and financial support available to the Republika Srpska, and had it withdrawn that support, this would have greatly constrained the options that were available to the Republika Srpska authorities.”).

110 Ibid., p. 138, paras. 233-234.

111 Written Statement, p. 10, para. 34 and Ann. 2.

112 See, in particular, Written Statement, pp. 5-6, paras. 11-17, as well as Written Comments, p. 3, para. 8 and pp. 4-5, para. 12.

113 Security Council resolution 1244 (1999), Ann. 1, sixth item and Ann. 2, para. 8.

114 Interim Agreement for Peace and Self-Government in Kosovo, Rambouillet, 23 Feb. 1999, Chap. 8, Art. I (3) (UN document S/1999/648, 7 June 1999, p. 85).

115 CR 2009/30, p. 61, para. 22 (Koskenniemi, Finland).

116 See, inter alia, A comprehensive review of the situation in Kosovo, S/2005/635, 7 Oct. 2005.

117 Letter from the Secretary-General of the United Nations to Mr. Martti Ahtisaari, 14 Nov. 2005, Dossier No. 198, in the Dossier provided to the Court from the United Nations Secretariat.

118 Written Statement, p. 8, para. 27. 

119 Judge Manfred Lachs, President of the International Court of Justice, Commemorative Speech at the United Nations General Assembly, 12 Oct. 1973, quoted by Thomas Franck, Fairness in International Law and Institutions, 1995, Oxford, p. 48.