Russia-US clash at ICJ over legality of Kosovo's UDI

Russia and the US clashed over the legality of Kosovo's unilateral declaration of indepdence in front of the International Court of justice in The Hague.

(KosovoCompromise Staff) Tuesday, December 08, 2009

Moscow and Washington are heading two blocks in the United Nations - one favoring, and the other opposing the Kosovo Albanian unilateral proclamation of independence.

This was the first time in the last 50 years that Russians and Americans face each other directly in an international court.

The ambassador of the Russian Federation to the Netherlands, Kirill Gevorgian, who today acted as Russia's legal representative in the ICJ proceedings, said that the unilateral declaration was illegal, and stressed that UNSCR 1244 was still in force, guaranteeing Serbia's territorial integrity.

Gevorgian also noted that general international law is preventing Kosovo from declaring independence, bearing in mind that the people of Kosovo do not enjoy a right to self-determination.

Russia believes that Resolution 1244 is still in force and that all sides are obligated to respect it, and the guarantees for the territorial integrity and sovereignty of Serbia, the ambassador stressed.

"Resolution 1244 is still in force and for this reason, no institution can proclaim independence. Russia believes that the unilateral resolution on the independence of Kosovo is contrary to Resolution 1244 and international law," the Russian representative said.

Gevorgian stressed that Resolution 1244, which proscribes a Kosovo status solution through negotiations and with the consent of both sides, and prohibits unilateral moves, cannot be overturned by a decision of UN secretary-general's envoy Martti Ahtisaari to end the negotiations and recommend independence as the only solution.

Ahtisaari, the ambassador told the ICJ judges, "not only missed a chance to secure an agreement but also came forward with his own solution, contrary to the position of one of the parties".

Ahtisaari's failure does not mean that the process has been concluded, Gevorgian said, and added that the Security Council decides on that.

While describing the status negotiations, the Russian representative today quoted the words of Kosovo Albanian representative Skender Hiseni, who said that the negotiations were led on "whether or not Serbia will accept Kosovo's independence".

The temporary international regime in Kosovo could only have been ended by the UN Security Council, in keeping with Resolution 1244, the ambassador added.

Gevorgian went on to say that unlike Ahtrisaari, the Security Council had decided to extend the negotiations and that Serbia was offering an ever increasing level of autonomy to the Albanians, including membership in international organizations.

Rejecting claims coming from those countries who support the unilateral declaration that international law "does not regulate independence declarations", the Russian representative reminded that the UN Security Council declared Northern Cyprus and Rhodesia's independence to be illegal, since secession is forbidden outside the colonial context.

Russia also pointed out that "severe violations of Albanians' human rights during the 1990s" cannot serve as justification for the unilateral proclamation made in 2008.

"We often hear that international law is no law, that it does not apply to precedents, and that power is the law. This case is a chance to demonstrate that international law is in effect," Gevorgian concluded.

The U.S. has called on the International Court of Justice to leave the Kosovo independence declaration untouched, as the expression of the will of the Kosovo people, and either refuse to give an opinion on its legality, or confirm that international law does not prohibit the declaration of independence.

U.S. legal representative Harold Hongju Koh called on the court to not deal with the larger question of self-determination in international law, but to look at Kosovo as a "unique" case.

"There is no contradiction between the peacefully proclaimed declaration of Kosovo independence and international law, including Resolution 1244," he said.

As evidence, Koh stated that "9 out of 15 members of the UN Security Council" who voted for the resolution, passed in 1999, "later recognized Kosovo".

He stressed that the unilateral independence declaration "came from a political process which was supervised by the UN Security Council," and that it is therefore "in accordance with Resolution 1244".

Koh reminded that the UN secretary-general's envoy Martti Ahtisaari stated after failed negotiations that "Kosovo independence is the only sustainable solution."

The U.S. representative also stated that Resolution 1244 is "not a guarantee of Serbia's territorial integrity", but of the "territorial integrity of the Federal Republic of Yugoslavia, which no longer exists", and "only during the period of temporary international administration in Kosovo".

Koh said that the "independence declaration did not violate the principle of territorial integrity" because, he as he put forward, "according to international law, it must be respected only by the countries, not by internal entities".

Citing the ruling of the Hague Tribunal in the Milan Milutinovic case, Koh suggested that the legitimacy of the independence declaration comes from the fact that the Kosovo Albanians were subject to a campaign of "state-supported violence for years", which "culminated in 1999 when 10,000 Albanians were killed and about a million were displaced."

Spain stated that the unilateral proclamation of Kosovo's independence goes against international law.

"The unilateral Kosovo independence declaration cannot be in accordance with international law because it violated the principle of territorial integrity and sovereignty of Serbia, which is engraved in the UN Security Council Resolution 1244," Spanish representative Concepcion Escobar Hernandez said.

She added that "with the adoption of Resolution 1244, the Security Council did not vote in favor of Kosovo's independence, nor for then Federal Republic of Yugoslavia to lose sovereignty over the province."

Resolution 1244 was passed with "wise balance between the interests of the two sides" and founded on two basic principles - the territorial integrity and sovereignty of the Federal Republic of Yugoslavia and the right of ethnic Albanians for self-determination through self-administration and autonomy, Hernandez said.

According to the resolution, a future status of Kosovo must be the result of a political process, and agreement between the two sides.

"Spain believes that Resolution 1244 is still in power, and that the political process for seeking a solution is ongoing, until the Security Council passes a different decision," Hernandez said.

It can only be concluded, the Spanish representative continued, that without a new decision from the UN Security Council, the negotiations on Kosovo's future status must continue.

Hernandez also said that a unilateral act cannot be considered an "agreement" which Resolution 1244 envisioned.

"Both sides have to agree on a solution and the UN Security Council must support it," Hernandez underscored.

She said that a unilateral secession is not allowed under international law, unless in case it concerns a colony.

Hernandez backed this statement by quoting from last year's EU report on the conflict between Georgia and Russia.

Spain gives great significance to the protection of human and minority rights, she said but rejected claims that repression of Kosovo Albanians during the 1990s justify unilateral secession.

Spain's stance is that this question was solved with the UN Security Council Resolution 1244, which enabled ethnic Albanians to enjoy a broad autonomy, Hernandez concluded.