Reply of the Argentine Republic to the questions posed by Judges Koroma and Cançado Trindade at the close of the oral proceedings (translation)

Reply of the Argentine Republic to questions posed by Judges Koroma
and Cançado Trindade at the close of the oral proceedings

[Translation]

Question posed by Judge Koroma:

“It has been contended that international law does not prohibit the secession of a

territory from a sovereign State. Could participants in these proceedings address the
Court on the principles and rules of international law, if any, which, outside the

colonial context, permit the secession of a te rritory from a sovereign State without the
latter’s consent?”

Reply of the Argentine Republic:

1. Some participants in the advisory proceed ings have indeed argued 1hat international law
does not prohibit the secession of a territory from a sovereign State . The Argentine Republic is of
the view that this argument is fallacious. The application of the fundamental principles of

international law, such as respect for territorial integrity and non-interference in matters that lie
essentially within the domestic jurisdiction of States conduces to the prohibition of secession at the
international level. The position taken by the United Nations, which opposed the secession of

Katanga and supported respect for the territorial integrity of the Congo, probably marks the turning
point in terms of the opposability to secessionist movements of the principle of respect for
territorial integrity. Subsequent practice has confirmed such opposability, as is shown by the

positions taken by the international community regarding the situations within Bosnia and
Herzegovina, Georgia, the Fede ral Republic of Yugoslavia (now the Republic of Serbia),
2
Azerbaijan, Somalia, Sudan, the Comoros and the Philippines, among others .

2. The existence of a rule of international law authorizing secession in cases of serious
violation of human rights or the rights of minorities has been posited in these proceedings. This is
the so-called theory of “corrective secession” or “remedial secession”. Argentina has already
3
explained why, in its opinion, such a rule does not exist in positive international law . Argentina
has also explained why the principle of the right to self-determination cannot be used to justify the
non-consensual separation of part of the territory of a sovereign State . 4

3. A so-called “principle of effectiveness” w as also put forward during the oral proceedings
5
as a possible rule justifying secession . However, the quintessential features of any legal system,
and international practice, stand in stark c ontradiction to the claim that an enduring de facto

1CR2009/26, paras.12-13 (Frowein, Albania); CR2009/27, paras.19-22 (Tichy, Austria); CR2009/30,
para.19 (Koh, United States of America); CR2009/31, pa ra.43 (AlHussein, Jordan); CR2009/32, paras.17-22

(Crawford, United Kingdom); CR 2009/25, para. 30 (Müller, Authors).
2Written Comments of the Republic of Serbia, paras. 263-274.

3Written Statement of Argentina, para.97; Written Comme nts of Argentina, para.59; CR2009/26, para.25
(Ruiz Cerutti, Argentina).

4Written Statement of Argentina, paras.87-100; Written Comments of Argentina, paras.59-61; CR2009/26,
paras. 21-26 (Ruiz Cerutti, Argentina).
5
CR 2009/26, p. 30, para. 29 (Wasum-Rainer, Germany): “Of course, not every factual situation is in accordance
with the law just because it is factual. When it comes to the question of statehood, however, international practice clearly
refers to the principle of effectiveness.” - 2 -

situation is in itself a legal justification for that same situation. The Canadian Supreme Court, in its
reference concerning Quebec, correctly established the relationship between a power and a right:

“A right is recognized in law: mere physical ability is not necessarily given
status as a right. The fact that an individual or group can act in a certain way says

nothing at all about the legal status or consequences of the act. A power may be
exercised even in the absence of a right to do so, but if it is, then it is exercised
6
without legal foundation.”

Or again:

“It is further suggested that if the secession bid was successful, a new legal

order would be created in that province, which would then be considered an
independent state. Such a proposition is an assertion of fact, not a statement of law. It
may or may not be true; in any event it is irrelevant to the questions of law before us.

If, on the other hand, it is put forward as an assertion of law, then it simply amounts to
the contention that the law may be broke n as long as it can be broken successfully.
Such a notion is contrary to the rule of law, and must be rejected.” 7

International practice clearly shows that certain situations which could be characterized as effective

do not on that account warrant being described as involving the creation of a State. Evidence for
this can be found in the cases of Southern Rhodesi a, the so-called “Turkish Republic of Northern
Cyprus” and “Somaliland”, among others. Thus, th e alleged “principle of effectiveness” provides

no legal basis for secession.

4. Argentina is therefore not aware of any rule of international law which explicitly or
implicitly authorizes the secession of a part of a sovereign State without the latter’s consent.

International practice since 1945 has been consistent and uniform in this respect: all successful
secessions since that time have benefited from the c onsent of sovereign States. Such consent has
taken several forms and has been given at diffe rent times, both before and after the attempted
8 9
secession, but consent was unquestionably gi ven. This was the case for Singapore , Bangladesh ,
the Baltic States 10, the other States that emerged from the former Soviet Union 11, Eritrea 12 and
13
Montenegro .

6Reference Concerning Certain Questions Relating to the Secession of Quebec from Canada, para. 106, available
athttp://csc.lexum.umontreal.ca/en/1998/1998scr2-217/1998scr2-217.html.

7Ibid., paras. 107-108.
8
Agreement between the Government of Malaysia and the Government of Singapore, 7August1965,
563 UNTS 89. See Security Council resolution 213 (1965) and General Assembly resolution 2010 (XX).
9
Bangladesh was recognized by Pakistan on 2February 1974. See Security Council resolution351 (1974) and
General Assembly resolution 3202 (XXIX).
10
The Soviet Union recognized the independence of the Baltic States on 6Septem ber1991. See the comments
made by the President of the Security Council, Mr.Merimée (France), S/PV.3007, 12Se ptember1991; and Security
Council resolutions 709 (1991), 710 (1991) and 711 (1991).
11
Cf. the Minsk Declaration of 8December1991 and the Protocol of Alma Ata of 21December1991. ILM,
1992, Vol. XXXI, pp. 142-149.
12
General Assembly resolutions 47/114 and 47/230; Security Council resolution 828 (1993).
13
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 , pp.29-31, paras.67-75; General Assembly
resolution 60/264. - 3 -

5. It is well known that cases of dissolution must be distinguished from cases of secession.

In the case of the former, the predecessor State ceases to exist; as a result, the principle of
territorial integrity is not at issue since there is no longer a State capable of asserting the right to
respect for its territorial integrity. The interna tional community considered that the case of the
14
Socialist Federal Republic of Yugoslavia ( SFRY) was one of dissolution, not secession , contrary
to the position initially taken by the Federal Republic of Yugoslavia (Serbia and Montenegro) . 15

6. In conclusion, there are no legal rules au thorizing the secession of part of a sovereign
State without the latter’s consent.

*

* *

Question posed by Judge Cançado Trindade:

“United Nations Security Council reso lution1244 (1999) refers, in its
paragraph 11 (a), to ‘substantial autonomy and self-government in Kosovo’, taking
full account of the Rambouillet Accords. In your understanding, what is the meaning

of this renvoi to the Rambouillet Accords? Does it have a bearing on the issues of
self-determination and/or secession? If so, what would be the prerequisites of a
people’s eligibility into statehood, in the framework of the legal régime set up by

Security Council resolution 1244 (1999)? And what are the factual preconditions for
the configurations of a ‘people’ and of its eligibility into st atehood, under general
international law?”

Reply of the Argentine Republic:

1. It should be noted at the outset that th e “Rambouillet Accords” constitute no more than a
proposed agreement submitted to the central gove rnment authorities of Belgrade and to the
representatives of the Albanian community in Kosovo, which did not lead to a successful outcome.

The reference made to the “Ram bouillet Accords” in resolution1244 (1999) does not make that
text a binding instrument; it means only that account should be taken of what had been proposed to
the Parties in March 1999.

2. Argentina has already discussed the sc ope of this reference in paragraph11 (e) of

resolution1244 16999) and shown that it does not authorize a unilateral declaration of
independence . However, the question posed relates to the reference contained in
subparagraph (a) of paragraph 11 of the resolution concerned:

14
Security Council resolution 1326 (2000); General Assembly resolution 55/12.
1Note dated 27April1992, addressed to the Secretary-General by the Permanent Mission of Yugoslavia to the

United Nations, United Nations doc. A/46/915, 7 May 1992.
1Written Statement of Argentina, paras. 98-99; Written Comments of Argentina, para. 60; CR 2009/26, para. 23
(Ruiz Cerutti, Argentina). - 4 -

“11. Decides that the main responsibilities of the international civil presence

will include: (a) Promoting the establishment, pending a final settlement, of
substantial autonomy and self-government in Kosovo, taking full account of annex2
and of the Rambouillet accords (S/1999/648).”

A. First part of the question

3. The first part of the question concerns what is to be understood by the reference to the

“Rambouillet Accords”. Argentina is of the view th at this reference implies that the international
authorities in charge of the administration of the territory were required to take full account of the
régime of self-government provided for in great detail in the text presented at Rambouillet.

Subsequent practice shows that UNMIK did in fact model the autonomy and self-government
régime on the “Rambouillet Accords”.

B. Second part of the question

4. The second part of the question concerns the possible bearing of this reference on the
issues of self-determination and/or secession. Argentina is of the opinion that this reference relates

to the organization of a régime of autonomy and self-government, which necessarily implies a form
of internal self-determination, thus excluding an y possibility of unilateral secession or recognition
of an external right to self-government. In view of the fact that serious violations of human rights

and international humanitarian law had been committed by the Belgrade Government, the
establishment of this régime can also be interpre ted as a rejection of the doctrine of “corrective
secession” or “remedial secession”.

5. The verb “promoting” is also significant. It implies that the task of establishing
“autonomy and self-government” was not to be th e responsibility of the international presence

alone (otherwise the appropriate ve rb would have been “establishing”), but that it also fell to the
two interested parties. Moreover, the verb “p romoting” is followed by the phrase “pending a final
settlement”, which also authorizes our interpreting th is paragraph to mean that the future prospect
envisaged at the time was indeed autonomy and self-government within the sovereign State. When

it spoke to its vote on resolution 1244, Argentina explained that that was how it had interpreted the
situation. Its representative on the Security Council stated that

“[this resolution] lays the foundation for a definitive political solution to the Kosovo

crisis that will respect the sovereignty and territorial integrity of the Federal Republic
of Yugoslavia. The rights of minorities and of all the inhabitants of Kosovo, without
exception, to live in a climate of peace and tolerance must also be unequivocally
17
recognized.”

Similarly, the French representative clearly affi rmed in respect of the régime established by
resolution 1244 (1999) that “[t]he Security Council will remain in control of the implementation of
18
the peace plan for Kosovo” , which necessarily rules out any possibility of unilateral secession.

C. Third part of the question

6. The third part of the question reads as follows : “If so, what would be the prerequisites of
a people’s eligibility into statehood, in the frame work of the legal régime set up by Security

17
Mr. Petrella (Argentina), S/PV.4011, p. 19.
18
Mr. Dejammet (France), S/PV.4011, p. 12. - 5 -

Council resolution 1244 (1999)?” In Argentin a’s view, the legal régime set up by

resolution1244(1999) does not at all permit us to speak of a “people” vested with a right to
establish an independent State. Neither Rambouillet nor resolution1244(1999) recognized the
applicability of the principle of self-determination to the Albanian community or to all the

inhabitants of Kosovo. The only way for these popula tions to obtain the status of an independent
State lies in the acceptance of that possibility by the sovereign State. Even the Security Council is
not competent to decide on the destiny of territories under the sovereignty of Member States of the

Organization.

D. Fourth part of the question

7. The fourth part of the question explicitly calls for clarification of the factual preconditions,
under general international law, for the configuration of a “people” and its eligibility for statehood.

In Argentina’s opinion, the international practice that followed the adoption of the United Nations
Charter provides a basis for identifying important legal criteria in this area. There are five such
criteria.

Th8e. first criterion is that any human community claiming the status of a “people” does not

necessarily possess such status in terms of the right to self-determination . Argentina refer19d to
this matter in its written and oral statements, citing the relevant jurisprudence of the Court .

Th9e. second criterion is that international law distinguishes between peoples, minorities
and indigenous peoples, that these three categories have different rights an d that only the former
enjoy the right to external self-determination.

T1he. third criterion is that international law distinguishes between peoples subject to

colonial or foreign domination and those that already have statehood. General Assembly
resolution 56/141 on “Universal realization of the right of peoples to self-determination” on the one
hand reaffirms the right of peoples “under co lonial, foreign and alien domination” to
self-determination, and on the other notes that foreign intervention and occupation threaten to
20
suppress “the right to self-determination of sovereign peoples and nations” . The latter are
entitled to create their own State; the former have already done so and it is the internal aspect of
self-determination which then becomes relevant.

Th1e. fourth criterion, a corollary of the third, is th at the legal status of the territory is

essential to determining whether a people has the righ t to external self-determination. As has been
pointed out: “[c]ontrary to the situation obtaini ng in the case of colonial peoples, a right to
secession cannot be inferred from a right of self-determination in the case of a people integrated
21
into a State: the difference in nature of the territories concerned precludes any analogy” . And
former President Rosalyn Higgins states: “[u]ntil it is determined where territorial sovereignty lies,
it is impossible to see if the inhabitants have a right of self-determination” . 22

1Written Statement of Argentina, paras.89-91; Written Comments of Argentina, para.59; Oral Statement of
Argentina (Ruiz Cerutti), para. 26.
20
Adopted on 19 December 2001; emphasis added.
2P. Dailler, Mr. Forteau, A. Pellet, Droit international pub, 8th ed., Paris:LGDJ, 2009, pp.584-585,

para. 344.
2R.Higgins, “International Law and th e Avoidance, Containment and Resolu tion of Disputes. General Course
on Public International Law”, RCADI, 1991, Vol. 230, p. 174. - 6 -

T1he. fifth criterion that emerges from international practice is the fundamental role played

by competent international bodies in determining whether or not a “people” possesses the right of
self-determination. As is affirmed by Pierre-Marie Dupuy,

“[t]he recognition by the international community of a people’s right to
self-determination is most commonly expressed through a vote within the plenary
organ of international or regional institutions with political functions, chief among

which stand, in the first category, the Un ited Nations General Assembly itself (which
has undoubtedly, moreover, seen a considerable expansion, in practice, of its powers
in the area of decolonization), and in the second category, the various regional

organizations (...). The possession of the right to self-determination is decided in
practice not by self-election, but through designation by a third body. A typical case
is one where the assessment of legality is dependent on a judgment based on the
23
legitimacy of the way in which it is exercised” .

13. As regards the other factual elements conducive to determining a people’s right to

self-determination mention may be made of the cr iteria adopted by the General Assembly in its
resolution1541(XV), which include both territori al and human aspects: “a territory which is
geographically separate and is distinct ethnically and/or culturally from the country administering
24
it” . In fact, these criteria provide a basis for determining whether or not a people is “a colonial
people”. As the Court itself has noted, even in the case of decolonization, any population
established on a non-autonomous territory does not necessarily constitute a “people” entitled to
25
self-determination . In the case of populations established on the territory of sovereign States, the
distinction between the whole (the “people”) and any constituent parts (minorities, indigenous
peoples) remains applicable. In the context of its debate on national minorities, the Parliamentary

Assembly of the Council of Europe adopted a recommendation on “The concept of nation”, in
which it distinguishes the “civic nation” from the “cultural nation”. National minorities, while
belonging to the “civic nation” of the State in which they reside, would form part of “cultural
26
nations” . The term “civic nation” reflects what is meant by “people” in international law in
relation to the principle of self-determination, whereas “cultural nations” include minorities.

Conclusion

14. In conclusion, the reference to the “Rambouillet Accords” in paragraph11 (a) of

resolution1244(1999) was intended to make use of the institutional model provided for in those
draft accords in order to promote the establishment of a régime of autonomy and self-government
within the framework of a sovereign State. Th e aim was to apply internal self-determination,

thereby excluding any possibility of secession or of validly invoking a right to external
self-determination. Under resolution 1244 (1999), the only possible way of securing the creation of
an independent Kosovo is to obtain the consent of the sovereign State in the context of a political

process.

15. Under general international law, only peoples are entitled to self-determination. A

primary fundamental distinction is the one betw een peoples, minorities and indigenous peoples. A

23P.-M. Dupuy, Droit international public, 9th ed., Paris, Dalloz, 2008, pp. 149-150, para. 133.
24
Principles which should guide Member s in determining whether or not an obligation exists to transmit the
information called for under Article 73 (e) of the Charter, resolution 1541 (XV), Ann., Principle IV.
25
Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 33, para. 59.
26Recommendation 1735 (2006), adopted on 26 January 2006, available at
http://assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta06/FREC…. - 7 -

second fundamental distinction is the one betw een colonial peoples or peoples under foreign
domination, on the one hand, and peoples establishe d within sovereign States, on the other. The

former are concerned by the external aspect of th e right to self-determination, the latter by its
internal aspect. The legal status of the territory concerned plays a decisive role, as does the
recognition or non-recognition by competent international bodies of a human community as a
“people” entitled to self-determination. Self-qualification is not a sufficient basis for recognizing a

people’s entitlement to self-determination.

___________