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Madrid, 14 April 2009 His Excellency Mr. Philippe Couvreur MINISTERIO DE ASUNTOSEXTERIORES Y DE COOPERACIÔN El M.inistro Madrid, 14 April 2009 His Excellency Mr. Philippe Couvreur Registrar International Court of Justice Peace Palace 2517 KJ The Hague The Netherlands Y our Excellency, In response to your letter of 20 October 2008, it is my honour to inform you that, following the Court's Ortler of 17 October 2008, the Government of Spain has decided to submit a written statement regarding the request from the United Nations General Assembly for an Advisory Opinion on the Accordance with International Law of the Unilateral fleclaration of Independence by the Provisional Institutions of Self­ Government of Kosovo. In this respect, I am pleased to inform you that the Kingdom of Spain will be represented in these advisory proceedings by Professor Concepci6n Escobar Hemandez, Legal Adviser of the Ministry of Foreign Affairs and Cooperation. Please accept, Y our Excellency, the assurances of my highest consideration. Minister of Foreign Affairs and Cooperation INTERNATIONAL COURT OF JUSTICE ACCORDANCEWITH INTERNATIONALLAW OF THE UNILATERALDECLARATION OF INDEPENDENCEBY THE PROVISIONALINSTITUTIONS OF SELF-GOVERNMENTOF KOSOVO (REQUEST FOR ADVISORY OPINION) WRITTEN STATEMENT OF THE KINGDOM OF SPAIN April, 2009 GOBIERNO MINISTERIO DE ESPANA DE ASUNTOS EXTERIORES Y DE COOPERACIÔN CONTENTS Page 1.- REQUEST FOR AN ADVISORY OPINION: GENERAL ISSUES...................... 5 1.- Introduction................................................................................................ 5 2.- The scope of the question.......................................................................... 6 3.- The competence of the Court..................................................................... 7 Il.- ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE: GENERALAPPROACH ..................... 9 Ill.- THE PRINCIPLE OF SOVEREIGNTY AND TERRITORIAL INTEGRITY OF STATES............................................................................................................. 14 1.-Sovereignty and territorial integrity of States under contemporary international law......................................................................................... 14 1.1.- Legal recognition and scope of the principle................................... 14 1.2.- The practice of the Security Council... ... .............. ... ... .............. ... ... .. 19 2.- Sovereignty and territorial integrity in the case of Kosovo......................... 24 2.1.- Sovereignty and territorial integrity in Security Council Resolution 1244 (1999) ..................................................................................... 24 2.2.- Sovereignty and territorial integrity in the «international presence under Resolution 1244(1999)» in Kosovo.......................................... 27 2.2.1.- UNMIK.............................................................................. 27 2.2.2.- NATO................................................................................ 31 2.2.3.- OSCE.. ... ....... ... ....... ... ....... ... ....... ... ....... ... ....... ... ....... ... .... 32 2.2.4.- European Union................................................................ 33 2.3.- Sovereignty and territorial integrity as regards the case of Kosovo in other international Organizations and bodies............................. 36 IV.- THE PROVISIONAL SELF-GOVERNMENT REGIME OF KOSOVO............... 38 1.- Resolution 1244 (1999) as the framework and legal basis of interim international administration regime, including the provisional self­ government regime of Kosovo.................................................................... 38 2.- Kosovo's provisional self-government regime «within» Serbia.................. 40 2.1.- The Provisional Institutions of Self-Government of Kosovo (PISG).. 40 2.1.1.- Nature............................................................................... 40 2.1.2.- Competences.. ... .... ... ....... ....... ... .... ... .... ... ....... ....... .. .... ... 42 2.2.- The international civil presence as a limit to the PISG's competences.................................................................................... 43 -3- Pagina 2.3.- The process of determining the future status of Kosovo as a limit to the interim international administration regime and to the PISG's competences..................................................................................... 46 V.- THE PROCESS TO DETERMINE KOSOVO'S FUTURE STATUS: AN OPEN PROCESS........................................................................................................... 47 1.- Resolution 1244(1999) as the framework and legal basis for the process to determine Kosovo's future status.............................................. ............. 47 2.- Characteristics and conditions of the political process... .... ... .... .. .. .... .... ... 49 3.- The role of the Security Council.......... ... ... ... ............. ... ... ... ........... .. ... ... ... .. 52 4.- Validity of Resolution 1244(1999) and continuity of the process... .... .... .... 53 VI.-CONCLUSIONS........... ... ... ........... ... .............. ... ........... ... .............. ... ...... ..... ... ... .. 55 -4- 1. REQUEST FOR AN ADVISORY OPINION: GENERAL ISSUES 1. INTRODUCTION 1. On 8 October 2008, the General Assembly of the United Nations adopted Resolution 63/3, under which, pursuant to the stipulations of Article 96 of the UN Charter and in implementation of Article 65 of the Statute of the International Court of Justice (ICJ), it decided to ask the ICJ to issue an advisory opinion regarding the following question: «ls the unilateral declaration of independence by the Provisional Institutions of Self­ Government of Kosovo in accordance with international law? » Resolution 63/3 was approved by 77 votes in faveur, 6 against, and 74 abstentions. Spain voted in faveur of the aforesaid Resolution, and submitted the following statement explaining its vote: «[a]s is we/1 known, the Spanish Government believes that the respect for international law is the fundamental principle governing the actions of States and international organizations, and in particular the United Nations, in the context of their international relations. Spain has therefore placed that fundamental principle at the core of al/ its actions in the international arena, while at the same time giving the United Nations an unparalleled leading raie in that regard». Spain aise highlighted the importance it attributes «to the correct functioning of the principal organs of the Organization, including the General Assembly and the International Court of Justice, and to the interaction amongst those organs to promote the achievement of the purposes and principles of the United Nations, in accordance with the Charter», and concluded that «in the general interest of the Organization and the international community as a whole, it would be advisable to provide the [General] Assembly with an authorized opinion of the main judicial body of the United Nations on the legal aspects of issues that, such as the present one regarding Kosovo, have been the abject of diverse interpretations by Member States.» 1 2. On 17 October 2008, the ICJ issued the Orcier by which it decided that the United Nations and its Member States could furnish information to the Court regarding this advisory procedure. ln this Orcier, it fixed 17 April 2009 as the time-limit within which written statements on the question may be submitted by those States that so desire. On 20 October 2008, the Secretary of the Court, pursuant to Article 66.2 of the Statute of the ICJ, officially informed the Government of Spain of the aforesaid Orcier. ln response to this communiqué, the Government of Spain, moved by its deep commitment to international law and guided by its full confidence in the ICJ as the UN's 1 See A/63/PV.22, pp. 7-8. Statement by Ambassador Yarïez-Barnuevo. -5- main judicial body, submits this written statement expressing its views on the legal issues contained in the request for an advisory opinion formulated by the General Assembly. 3. ln its Orcier of 17 October 2008, the ICJ «[d]ecides further that, taking account of the tact that the unilateral dec/aration of independence by the Provisional Institutions of Self­ Government of Kosovo of 17 February 2008 is the subject of the question submitted to the Court for an advisory opinion, the authors of the above dec/aration are considered likely be able to furnish information on the question; and decides therefore to invite them to make written contributions 2 to the Court within the above time-limits. » The Government of Spain does not consider it necessary to formulate any observation at this time regarding such an invitation or its accordance with the norms involved in an advisory procedure. However, it does want to point out that the aforesaid invitation does not introduce, nor may it introduce, any modification regarding the legal status of the Provisional Institutions of Self-Government of Kosovo, nor may it be interpreted in any way as a modification of Kosovo's legal status. 2. THE SCOPE OF THE QUESTION 4. The General Assembly has submitted a question to the ICJ written in simple, clear, and precise terms, and which sets forth the three relevant elements, to wit: i) The unilateral declaration of independence (UDI) of Kosovo; ii) The Provisional Institutions of Self-Government (PISG) of Kosovo which issued this declaration; and iii) The international law in light of
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