General Assembly Session 63 meeting 22

The President

I give the floor to the Minister for Foreign Affairs of Serbia, His Excellency Mr. Vuk Jeremi, to introduce draft resolution A/63/L.2.

Mr. Jeremi (Serbia)

It is my honour and pleasure to introduce the draft resolution proposed by the Republic of Serbia contained in document A/63/L.2. My presence here today as Foreign Minister of the Republic of Serbia signifies the importance that my country assigns to this issue.

On 17 February 2008, the provisional institutions of self-government of Serbia's southern province of Kosovo and Metohija unilaterally declared independence. Our democracy responded with maximal restraint. We ruled out the use of force and the imposition of economic sanctions against the breakaway province. Serbia decided to defend its sovereignty and territorial integrity through diplomacy and international law.

We have chosen to seek an advisory opinion from the International Court of Justice (ICJ) on the legality of the unilateral declaration of independence. Today we are turning to the General Assembly to convey that request to the Court, in fulfilment of its powers and functions under the United Nations Charter.

This non-confrontational approach is highly principled and legitimate. It will serve to reduce tensions in the region and facilitate our efforts at reconciliation.

The Republic of Serbia believes that sending this question to the Court would prevent the Kosovo crisis from serving as a deeply problematic precedent in any part of the globe where secessionist ambitions are harboured.

We also believe that the Court's advisory opinion would provide politically neutral, yet judicially authoritative, guidance to many countries still deliberating how to approach unilateral declarations of independence in line with international law.

Lastly, we believe that recourse to the Court would strengthen the rule of law in international relations and make the proposed course of action a symbol of the world community's resolve to take the United Nations Charter as its guide.

Supporting this draft resolution would also serve to reaffirm a fundamental principle: the right of any Member State of the United Nations to pose a simple, basic question on a matter it considers vitally important to the Court. To vote against it would be in effect a vote to deny the right of any country to seek -- now or in the future -- judicial recourse through the United Nations system. To vote against it would also mean accepting that nothing can be done when secessionists in whichever part of the globe assert the uniqueness of their cause and claim exception to the universal scope of the international legal order.

My country would like to extend our appreciation to those that, while not currently persuaded of the utility of the proposal, have decided to engage themselves in this question, acknowledging that our draft resolution addresses important issues of international law.

All Member States have on numerous occasions confirmed their confidence in the Court as the principal judicial organ of the United Nations. We must therefore have full confidence that the Court will perform its duty in an exemplary fashion without any special directives.

The question posed is amply clear and refrains from taking political positions on the Kosovo issue. The Court's response, in the form of an advisory opinion, will be based on international law, in accordance with the Court's Statute and Rules of Procedure. Article 66 of the Statute gives a clear indication of the procedures utilized by the Court. No additional instructions by the General Assembly are appropriate.

We believe that the draft resolution in its present form is entirely non-controversial. It represents the lowest common denominator of the positions of the Member States on this question, and hence there is no need for any changes or additions. Let us adopt it and allow the Court to act freely and impartially within the framework of its competencies. We are confident that the Court will know what to do, and that it will take into account the opinions of all interested Member States and international organizations. We hold that the most prudent way to proceed today is to adopt our draft resolution without opposition, in the same way that it was decided at the General Committee to include this item in the agenda.

The Republic of Serbia's steadfast pursuit of this peaceful course of action is a demonstration of our firm commitment to the international system that we have all helped to build.

History has placed the problem of Kosovo's unilateral declaration of independence before us all. The choice of whether to act through law is upon us. By acting concertedly in support of our draft resolution, we will have come together to help restore the sacrosanct character of the Charter of the United Nations, the document that binds us to one another as a world community of sovereign equals. And, by seizing the present moment, we will have begun to further enhance the enduring benefit and honour of the founding principles of the United Nations.

Sir John Sawers (United Kingdom)

Colleagues will be aware of the letter I wrote to the President on 1 October (A/63/461), enclosing a note of issues raised by the Serbian request for the General Assembly to seek an advisory opinion from the International Court of Justice on the legality of Kosovo's declaration of independence.

Let me start by making clear that the United Kingdom is a strong supporter of the International Court of Justice. We have for many years accepted the Court's compulsory jurisdiction. We are one of only 65 States with a current optional clause declaration, under article 36 (2) of the Court's Statute, giving the Court jurisdiction over a wide range of matters. We support the use of the Court by Member States to resolve their disputes and the right of United Nations institutions to seek advisory opinions on questions affecting the performance of their functions.

Why, it might be asked, are we now raising questions about the Serbian request? The reason is that the Serbian request is primarily for political rather than legal reasons. It is designed to slow down Kosovo's emergence as a widely recognized independent nation, playing its part in the international institutions of the world. Many members of the United Nations emerged into independence during what, at the time, were controversial circumstances. These circumstances normalize over time and the clock of history is rarely turned back. Kosovo's independence is and will remain a reality. The Government of Serbia will have to decide how it comes to terms with that reality.

Kosovo's independence has now been recognized by 22 out of 27 member States of the European Union, an organization that Serbia aspires to join. We too want to see Serbia as a member of the European Union. To that end, Serbia will need to work constructively with its future European Union partners to maximize stability in the region, including in Kosovo, so that we can achieve our goal of bringing the whole region and its peoples to a stable and more prosperous future.

In Security Council debates on this issue, I have set out that the United Kingdom is confident in its legal position as a State that has recognized the independence of Kosovo following the final status process, which was conducted pursuant to Security Council resolution 1244 (1999).

In terms of the draft resolution before us, my delegation regrets that our Serbian colleagues have declined to seek a consensual way forward. They have, on the contrary, decided to push this draft resolution through the General Assembly with minimal debate about the issues. That is not the custom in the General Assembly, and it is regrettable that Serbia has decided to pursue that course. In the light of our reservations on matters of both substance and procedure, the United Kingdom will abstain on this resolution.

If the resolution is adopted, the question will need to be addressed against the background of the full context of the dissolution of Yugoslavia in so far as it affects Kosovo, starting with Belgrade's unilateral decision in 1989 to remove Kosovo's autonomy through to events of the present day.

Serbia complains about the unilateral declaration of Kosovo in February 2008. But it was Serbia that, in a unilateral move of its own, rendered successful negotiations impossible. In November 2006, while the United Nations status envoy was conducting talks, Serbia brought forward a new constitution that unilaterally reasserted control over Kosovo. That constitution was narrowly approved by a referendum. But well over a million Kosovo Albanians, people whom Serbia was by its new constitution claiming as its own, were effectively excluded from voting. And the effect of the constitution was to tie the hands of the Serbian negotiators to the point where they could not even accept a status-neutral proposal put forward by the European Union.

That status-neutral proposal in December 2007 represented the last chance for a negotiated settlement, and it was rejected by Serbia. So, in coordination with many of the countries most closely involved in stabilizing the Balkans, Kosovo's Assembly declared Kosovo independent on 17 February 2008. The declaration committed Kosovo to full implementation of the United Nations envoy's Comprehensive Proposal for the Kosovo Status Settlement, including the most extensive safeguards for minority communities anywhere in Europe, together with international supervision. In the past eight months, 48 countries have recognized Kosovo as a sovereign independent State; and that number is set to grow.

If this draft resolution is adopted, my delegation invites the Court to proceed in accordance with the principle that, without prejudice to the advisory opinion being sought, all parties with an interest, including the Government of Kosovo, should be able to present arguments on an equal footing.

My Government's overwhelming concern in its policy towards the Balkans over this last 18 years has been to provide for peace and stability and to build a basis for long-term prosperity in the region. Those principles continue to guide us today. The people of Serbia have made a strategic choice in their recent election, one that my Government welcomes. We will do what we can to facilitate Serbia's integration into Europe. We will expect in return that the Government of Serbia will cooperate fully with the European Union in achieving stability in the southern Balkans for generations to come. Our disagreement with Serbia over the tactics that it is adopting on this particular issue will not distract us from our strategic objectives that we believe are widely shared and advance the interests of the people of the Balkans as a whole.

Mr. Neritani (Albania)

Each and every Member State has the right to operate within our current Charter-defined system and to use the rules of procedure, including even some loopholes, in order to clarify an issue, solve a dispute between parties, remedy a situation and/or seek an opinion. The International Court of Justice is a very well respected body in this regard and we strongly support it.

This institutional right comes together with the responsibility to exercise it objectively and in good faith. This nexus becomes more relevant because the issue at hand involves all of us as Members of this institution. The sense of purpose and the practical utility of this exercise must be based on that equation.

Let us go one small step further. The intentional reduction of the complex issue of Kosovo into a simple aspect, namely, the legal one, is an attempt to establish a situation outside of its context, cutting it away from its root causes. In other words, it attempts to establish a false connection between cause and effect.

The General Assembly deserves the truth and information that are known on the subject. Any intentional attempt to conceal the facts or to make a presentation based on half-truths is not a good-faith attempt in approaching this issue. Our institution's competence and its ability to take ownership of this issue hinge on a fair approach to this question.

The involvement of the General Assembly membership in this debate must have a purpose. I believe that the General Assembly need not be engaged in a debate aimed at meeting certain bars in the domestic politics of a particular Member State, bars raised artificially because of very painful events in the recent past.

A projected prolongation of the Kosovo recognition process is not in and of itself a good reason and a bona fide purpose for engaging the General Assembly membership in this debate. We have to be engaged and resolve, not freeze or block, certain developments that are proving to have a positive result on the ground for the present and the future.

In its known historical and political developments, Kosovo constitutes a unique case. This is true for each and every person that knows the facts on the ground and views them without any speculation or bias. For the sake of a violent and non-consensual break-up of the former Yugoslavia, a biblical exodus of 1 million Kosovar Albanians and thousands killed and disappeared, including into mass graves, took place only nine years ago. That State-run ethnic cleansing enterprise and genocide was stopped thanks to the intervention of international community, which, entirely legally, administered Kosovo until its declaration of independence.

The potential engagement of the International Court of Justice (ICJ) in this unique case, as it is presented in the draft resolution before us -- that is, out of context -- and the offering of an opinion based upon an intentionally singled-out element -- the legal one -- could lay the groundwork for interpretations that could have wider latitude and scale of application. While not anything close to a theoretically established precedent, this would reflect a top-down approach. Kosovo in and of itself is not a precedent. Pushing the envelope on this question by engaging the General Assembly might create a precedent, although a negative one, with potentially bad applications elsewhere.

On another technical matter, the wording "unilaterally declared independence": the word "unilateral" is not a factual representation, but a biased interpretation. The legal act of declaration of independence may have different qualifiers. As the General Assembly is discussing an issue to be referred to the ICJ, biased rhetoric that deviates from a factual representation of the circumstances on the ground is not a good reflection on the competence of the General Assembly.

We respectfully disagree with this attempt, which is logistically legal, but which is in essence a manipulative attempt to stall the process of recognition of Kosovo and to cause as much detrimental effect on the ground as possible. We believe that the Balkans deserve to channel these enormous energies towards building our common future with prosperity for all of us. Old stereotypes of getting even are outdated, everywhere.

We call upon other members to vote against draft resolution A/63/L.2.

Mr. lkin (Turkey)

Peace and stability in the Balkans have always been of the utmost importance for Turkey. In line with this, we are determined to further our relations with all Balkan countries in all fields. In this context, we value the close relations we have with Serbia and believe that that country's welfare and stability are indispensable to the well-being of the greater Balkan region and of Europe.

At the same time, Turkey has historical ties and strong fraternal bonds with the Kosovar people. Turkey was one of the first countries to have recognized Kosovo, and it is our view that this recognition is also consistent with international law. In fact, 48 countries have recognized Kosovo, and that only bolsters that conclusion.

We understand the particular reasons that have led Serbia to seek an advisory opinion from the International Court of Justice (ICJ). However, we do not think that this will help achieve the desired and immediately needed atmosphere of peace, stability and security in the Balkans.

On the other hand, Turkey strongly supports the ICJ as the principal judiciary organ of the United Nations. Therefore, out of respect for the ICJ, Turkey will not challenge the right of Serbia to have recourse to the ICJ and will not participate in the vote.

Ms. DiCarlo (United States)

After years of war, post-communist transition and deep hardship and suffering, the people of the Balkans, including those in Serbia and Kosovo, have rejected the destructive nationalism that brought them such misery in the 1990s. They seek a future as integrated, prosperous citizens of Europe.

Under the leadership of a democratically elected, multi-ethnic Government, the Republic of Kosovo today is at peace. The Government in Pristina has scrupulously followed the comprehensive proposal for the Kosovo status settlement developed by the Secretary-General's Special Envoy.

Kosovo has adopted a far-reaching constitution and has enacted 41 pieces of legislation to implement the comprehensive proposal. These include specific provisions which protect the rights of all ethnic minorities as well as the religious and cultural heritage of the population. Kosovo's Government has also acted with vision in seeking strong relations with all its neighbours, including Serbia.

For its part, Serbia is on the path to European integration, having recently signed a Stabilization and Association Agreement with the European Union.

The United States firmly believes that our common concern should be to focus our efforts to help shape this European future for Serbia and Kosovo. Specifically, we are extending economic and political support to both of these countries. We hope they will integrate further into international markets and structures, which will guarantee peace and prosperity for all of the region's peoples.

However, we do not think that the draft resolution proposed by Serbia advances that goal. Let me make clear that the United States offers its full support to the International Court of Justice (ICJ) and its role in providing advisory opinion in appropriate circumstances.

In regard to the specific question before us, on referring the declaration of independence of Kosovo Provisional Institutions of Self-Governance to the International Court of Justice, we respectfully suggest that an advisory opinion on this question is unnecessary and unhelpful. Therefore, the United States will vote against referral.

As a practical matter, Kosovo's independence is irreversible. Forty-eight countries have recognized Kosovo as an independent State, including 22 of the 27 members of the European Union. We are confident that recognition of Kosovo's independence by an ever-increasing number of States is consistent with international law.

We do not think it appropriate or fair to the Court to ask it to opine on what is essentially a matter that is reserved to the judgement of Member States. We ask members to consider the potential consequences if other Members or separatist movements within their countries were to seize upon language, in any opinion the Court might render, to bolster their own claims for or against independence.

Should this draft resolution go forward, the Court will, understandably, have to look at the referred question with extreme care, taking into account the particular context in which the events leading to Kosovo's declaration occurred. Kosovo must be viewed within the context of the violent dissolution of the former Yugoslavia in the 1990s. The policies of that period led the Security Council to adopt resolution 1244 (1999), which authorized the United Nations to administer Kosovo and called for a political process to determine Kosovo's status. After intensive negotiations, the United Nations Special Envoy recommended to the Secretary-General that Kosovo become an independent State. It is also important that the Court hear from the States most directly interested in this matter -- Serbia and Kosovo -- on an equal basis, as well as from the many other States that can be expected to make contributions to the Court's consideration of the case.

The United States welcomes and supports the remarkable progress made in the Balkan region towards building stable, multi-ethnic democracies and laying the groundwork for growth and development. Although we may disagree with Serbia on the issue before us today, the United States will work closely with Serbia and all other countries in South-Eastern Europe to advance our shared vision of a Europe that is whole, free and at peace.

Mr. Heller (Mexico)

I am grateful for the opportunity to express the legal opinion of the Government of Mexico on this important issue.

Draft resolution A/63/L.2, submitted by Serbia, is based on the prerogative, conferred on the General Assembly in Article 96 of the Charter of the United Nations, to request the International Court of Justice to give an advisory opinion on any legal question.

Since the founding of the United Nations, Mexico has been a firm and constant promoter of the principles of justice and international law enshrined in the Charter and of the International Court of Justice, which is the jurisdictional body par excellence for the peaceful resolution of disputes arising from the interpretation of international law.

The rule of law, to which we, the members of the international community, are subject, is possible only if it is equipped with effective jurisdictional mechanisms for the peaceful resolution of disputes arising from specific interpretations or applications of international law. The International Court of Justice, as the principal judicial organ at the international level, makes an invaluable contribution to consolidating the rule of law through its opinions on specific legal issues arising in the exercise of its advisory jurisdiction.

The General Assembly, for its part, also plays an important role in consolidating the rule of law by entrusting to the Court -- and thereby strengthening it -- specific legal issues on which there is some disagreement. In Mexico's opinion, the initiative and the text of Serbia's request for an advisory opinion are in keeping with the framework established in paragraph 2 of article 65 of the Statute of the International Court of Justice. Likewise, draft resolution A/63/L.2 fully meets the requirements set out in the Charter of the United Nations whereby the General Assembly may request an advisory opinion from the International Court of justice on a specific legal question referred to it.

In the light of all those considerations, Mexico will vote in favour of the draft resolution.

The President

We have heard the last speaker in the debate on this item.

We shall now proceed to consider draft resolution A/63/L.2. In that connection, I give the floor to the representative of the Secretariat.

Mr. Botnaru (Department of General Assembly and Conference Management)

In connection with draft resolution A/63/L.2, I wish to place on record the following statement of programme budget implications on behalf of the Secretary-General, in accordance with rule 153 of the rules of procedure of the General Assembly.

By draft resolution A/63/L.2, the General Assembly would decide, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, pursuant to article 65 of the Statute of the Court, to render an advisory opinion on the following question: "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?"

Should the draft resolution be adopted, the Court would proceed to establish the scope of the work arising from the request. Resources have been provided in the programme budget for the biennium 2008-2009 for the Court to provide advisory opinions as requested by organs of the United Nations and specialized agencies. It is anticipated, however, that, owing to the complexity of the question on which the Court is requested in the draft resolution to render an advisory opinion, adoption of the draft resolution is expected to give rise to additional resource requirements.

On the basis of a determination by the Court of the scope of work, a detailed statement of programme budget implications would be submitted to the General Assembly for its consideration during its present session.

The President

I shall now call on those representatives who wish to speak in explanation of vote before the voting. May I remind delegations that explanations of vote are limited to 10 minutes and should be made by delegations from their seats.

Mrs. Miculescu (Romania)

My delegation would like to underline the following before the voting. Compliance with international law is the very essence of our Organization and the matrix on which we strive to build international peace, stability and security. Draft resolution A/63/L.2 contains a question that is fully in line with the simple right of recourse to international law, to which any United Nations Member is entitled to benefit under the Charter itself.

Romania fully trusts the advisory opinions of the International Court of Justice, the main judicial organ of the United Nations, a prominent promoter and guardian of international law. We are absolutely sure that its opinion on the question raised in the draft resolution will assist us in making decisions in the future, in particular when fundamental issues such as the sovereignty and territorial integrity are at stake.

In the light of those considerations, Romania has decided to vote in favour of draft resolution A/63/L.2.