SEEKING ORAL STATEMENTS FOR ICJ ADVISORY OPINION

UNCLAS STATE 090199

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: AORC PREL ICJ KV
SUBJECT: SEEKING ORAL STATEMENTS FOR ICJ ADVISORY OPINION
ON KOSOVO'S DECLARATION OF INDEPENDENCE

REF: STATE 29385


1. (SBU) This is an action request for action addressee posts
that have recognized Kosovo. See paragraph 2.

ACTION REQUEST AND OBJECTIVES
-------------- --------------


2. (SBU) Embassies are requested to urge host governments to
formally register with the International Court of Justice
(ICJ) before September 15 their intent to present an oral
statement before the ICJ in the Kosovo advisory opinion case.
Any state may do so, whether or not it filed a written
statement in this matter. Oral hearings are scheduled to
begin December 1. Where possible, posts should seek to
deliver a joint or coordinated demarche with French, German,
and British, as well as Kosovo, counterparts. The approach
should target political decision-makers and, as appropriate,
host government legal personnel. If posts believe an approach
would be counterproductive, please inform the Department.

REPORTING DEADLINE
--------------


3. (SBU) Posts should report results to EUR/SCE, L/EUR, and
L/UNA no later than September 10.

BACKGROUND
--------------


4. (SBU) The ICJ has invited all UN Member States and Kosovo
to present oral statements and comments before the court in
December on the question of the &Accordance with
International Law of the Unilateral Declaration of
Independence by the Provisional Institutions of
Self-Government of Kosovo.8 Participation is not/not
restricted to those states that filed briefs in April or
July.
The deadline for registering intent to present an oral
statement is Sept. 15.


5. (SBU) Last fall, the UNGA adopted a Serbian-sponsored
resolution seeking an advisory opinion from the ICJ on the
legality of Kosovo's declaration of independence. The first
round of briefs was due on April 17, with 22 countries
(including the United States) presenting briefs in support of
Kosovo,s independence and 15 in support of Serbia,s
position. Ten countries presented additional briefs in the
second round of briefs on July 17. The United States and
Kosovo, along with eight other countries, filed in support of
Kosovo,s independence, while five countries (not including
Russia) filed in support of Serbia,s position. The United
States plans to participate in oral hearings which begin
December 1. Our goal is to encourage as many supporters as
possible to present arguments in support of Kosovo, if
possible in coordination with Kosovo and with the United
States and other Kosovo supporters. To date, 62 countries
have recognized Kosovo and more than 50 others which have not
yet recognized joined in voting to accept Kosovo for
membership in the IMF and/or World Bank, both of which Kosovo
officially joined on 29 June 2009.


6. (SBU) Posts may draw on the following points as
appropriate.

Process for oral arguments

-- Reiterate appreciation for host government's recognition
of Kosovo or vote for Kosovo membership in IFIs and its
support for Kosovo's growth as an independent, democratic
state.

-- Encourage the host government to participate in the ICJ,s
oral hearings starting in December and deliver an oral
statement supporting Kosovo.

-- Note that the United States also plans to participate in
oral hearings at the end of this year.

-- Note that the Court has invited all UN member states and
Kosovo to attend the oral hearings and that participation is
not limited to those states that presented briefs in April or
July. States wishing to participate in the oral hearings
must inform the Registry of the Court by September 15 of
their intent to do so.

-- Offer to coordinate with host government on the approach
to oral presentation and to field any questions the host
government might have.

Progress in Kosovo

-- Kosovo's success remains a high priority for the United
States and the U.S. administration, and we highly value the
host government's continuing partnership and support in this
effort.

-- Kosovo has made great strides in its first year and a half
of independence, living up to international community
expectations and fully deserving of host government's
support.

-- By this point, it is clear that Kosovo's independence is
irreversible.

-- It is important that other states demonstrate to the Court
that they accept Kosovo as a member of the international
community.

-- Participation in the oral hearings will represent
continuity with the host government's acceptance of Kosovo as
a member of the international community and is an important
opportunity to make its voice heard on an important
international legal issue and provide valuable insights and
perspective to the Court.

-- Presentations need not be long and may be based on, for
example, what was said by the host government at the time of
recognition or in written statements already submitted to the
Court. Our legal team is happy to coordinate with you or
answer any questions you may have on specifics. But in
general, it would be entirely appropriate to focus on a
single legal or political issue, e.g., stating its acceptance
and encouraging the Court to advise only on the narrow
question presented to it, rather than, for example, to
discuss broader questions of self-determination or
recognition of states. A key theme is to stress the progress
and stability in the region that have followed Kosovo,s
independence.


7. (SBU) Additional points for host governments that filed
briefs in April or July:

-- Thank you for your brief(s) in support of Kosovo,s
independence and continued support for Kosovo.

-- Presenting an oral statement in December would offer an
opportunity to reiterate points from your briefs and respond
to statements made by other member states, as well as to
underscore your continuing political commitment to Kosovo's
independence.


8. (SBU) Additional points for Croatia and Slovenia:

- As a former constituent republic of Yugoslavia, your
government can provide critical perspective for the Court on
Kosovo,s status within the former Yugoslavia; the events of
the 1990s; and the importance of Kosovo,s independence to
continued regional stability today.

- We expect that each presenter will have a limited
period of time -- perhaps as little as 30 minutes -- and we
would be happy to coordinate in preparing for the oral
presentations if you would find that useful.



9. (SBU) Additional point for Finland:

- You may want to respond formally to Serbia,s brief,
which inappropriately targeted President Martti Ahtisaari,
declaring him fundamentally biased during status talks.

- You may also want to include comments on the strengths
of the Ahtisaari plan.


10. (SBU) Additional points, if host government responds
affirmatively to our request to present an oral statement and
wishes at this stage to engage on matters of substance:

-- Our legal team would be happy to coordinate with you in
advance of the oral hearings as you prepare more concretely.

-- The question as posed to the Court was whether Kosovo's
declaration of independence is in accordance with
international law.

-- Given the sensitivity of this issue, we believe the Court
should address the question as narrowly as it was posed. For
instance, it does not question whether Kosovo is now a
"state" or whether it was permissible for other countries to
recognize Kosovo. We think it is important for states to
indicate to the Court that they consider the question narrow,
and do not seek broader statements on issues not directly
related to the narrow question.

-- The U.S. believes that recognition of Kosovo by other
states is both lawful and appropriate, and considers that, as
a practical matter, Kosovo's independence has now been
established and is irreversible. Within the UN system,
questions related to independence and statehood are left in
the hands of member states. The United States respects the
ICJ and values its advice, but the decision to recognize a
new state is a political decision which it is the prerogative
of every sovereign state to make.

-- Kosovo cannot be seen as a precedent for any other
situation in the world today. The unique and unusual
combination of factors found in the Kosovo situation -
including the extended period of UN administration during
which Serbia was excluded from any role in governing Kosovo,
and the creation of a special process to determine Kosovo's
final status - are not found elsewhere and therefore make
Kosovo a special case.

-- UNSCR 1244 itself made clear that the legal situation in
Kosovo was significantly different than other situations. It
was adopted on the premise that Kosovo needed to be dealt
with as a special case. Indeed, the international community
had approached the overall breakup of the former Yugoslavia
itself as a unique situation, of which Kosovo was the final
chapter.

POINTS OF CONTACT



11. (SBU) For further information on Kosovo, see IntraNet
website
https://infocentral.state.gov/regions/europe- -eurasia/kosovo.
For further information or
arguments in favor of U.S. objectives, please contact Kosovo
Desk Officers Marianne Toussaint (202-647-9173, or
toussaintms@state.gov),or Paul Pfeuffer (202-647-2452 or
pfeufferp@state.gov)


12. Minimize Considered.
CLINTON