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

Reply of the Republic of Burundi to the questions posed by Judges Koroma,

Bennouna and Cançado Trindade at the close of the oral proceedings

[Translation]

The Republic of Burundi thanks the Court for allowing it once again to express its opinion
on certain aspects of the questions put to the C ourt by the General Assembly. The brief comments
which follow are intended to provide some elements of a reply to two of the three questions posed

by the Court.

Question 1 [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 territory from a Sovereign State without the

latter’s consent?”

The Republic of Burundi aligns itself with those Members of the Organization which argue

that general international law does not prohibit secession. It would add, however, that general
international law does not, for that matter, author ize secession. There is no rule of international
law, outside the colonial context, which authori zes the secession of a territory forming part of an
existing State. In Burundi’s opinion, the fact that international law neither authorizes nor prohibits

the secession of an entity does not, however, precl ude the establishment of special régimes under
which secession could be specifically prohibited. In this case, it seems reasonable to contend that
resolution 1244 did indeed establish such a legal ré gime and prohibits any action, by the different
authorities entrusted with certain powers under the sp ecial régime, that would lead to the secession

of the territory of Kosovo. Even if it could not be established that the legal régime set up by
resolution1244 does not prohibit the authorities to which that resolution entrusted certain powers
over the territory of Kosovo from undertaking an y action which would contribute to secession,

there appears to be no doubt that it does not au thorize such action and that the authorities in
questions were not empowered to engage in acts contributing to the secession of the territory of
Kosovo. Accordingly, secession unquestionably forms no part of the mandate assigned to the
different authorities empowered under the special ré gime created by resolution1244 to exercise

certain powers over the territory of Kosovo.

Burundi is of the opinion, however, that this conclusion has no importance in relation to the
question put to the Court unless it is established th at the authors of the declaration adopted it in

their capacity as the authority vested, under the resolution, with certain powers over the territory
of Kosovo . The question of the extent of the powers of the authors of the declaration of
independence in fact arises only if they acted in the capacity of an authority vested, under the

resolution, with certain powers over the territory of Kosovo. This at least is the necessary
consequence of applying by analogy the law of international State responsibility, under which the
question of the extent of the powers of an organ arises only if it is established that it undertook the
relevant conduct in its capacity as the organ concerned . 1

Burundi hopes that its comments during the or al proceedings showed sufficiently clearly
that, in its opinion, the authors of the declaration of independence, in declaring their independence,
did not act as an authority vested, under resolution 1244, with certain powers over the territory of

1See Article 7 of the Articles on State Responsibility which specifies that “the conduct of an organ of a State or of

a person or entity empowered to exercise elements of the governmental authority sh all be considered an act of the State
under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes
instructions”; emphasis added. - 2 -

Kosovo. The question of the extent of the powers of the authors of the declaration of independence
in relation to the legal régime established by resolution1244 does not, therefore, arise.

Consequently, there is no need to consider whether the authors of the declaration, in the context of
the special régime concerned, acted ultra vires and took an action which was not authorized in that
framework.

Question 2 [question posed by Judge Bennouna]:

“Did the authors of the Unilateral Declaration of Independence by the

Provisional Institutions of Self-Government of Kosovo previously campaign, in the
elections of November2007 for the Assembly of the Provisional Institutions of
Self-Government of Kosovo, on the basis of their willingness, once elected, to declare
Kosovo independent unilaterally, or did they at least present the unilateral declaration

of Kosovo’s independence to their electors as one of the alternatives for their future
action?”

The Republic of Burundi considers that other pa rticipants in the proceedings are in a better

position to answer this question. It nevertheless de ems it appropriate to point out that the fact that
independence could have been one objective of the political programme of the authors of the
independence declaration is not a decisive factor in assessing the capacity in which they acted
when adopting that declaration.

Question 3 [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 statehood, under general

international law?”

The Republic of Burundi considers that th e reference to the Rambouillet Accords in
resolution1244 confirms that the right to self-deter mination is inapplicable in this case. Indeed,

the Rambouillet Accords make no reference to the principle of the right of peoples to
self-determination. In Burundi’s opinion, this is a further indication of the fact that the right to
self-determination does not apply outside decolonizat ion situations, these being the only situations
in which international law recognizes the right of certain entities constituting a people to set up an

independent State if such is their freely expressed will. That being said, the Republic of Burundi
deems it appropriate to recall that, in its opinion, the inapplicability of the right to
self-determination does not in this case prejudge the legality or illegality, within the interpretation
given to these terms by Burundi in its comments, of the independence declaration. Moreover, the

absence of a right to self-determination in this c ase is of no consequence for the existence of the
entity which invokes that right.

In Burundi’s opinion, the reference to the Rambouillet Accords in resolution1244 also

provides support for the idea that the legal régi me established by resolution1244 does not entitle
the authorities vested thereunder with certain powers over the territory of Kosovo to engage in any
act whatsoever that could lead to the secession of the territory of Kosovo. Indeed, Burundi takes
the view that the Rambouillet Accords very clear ly reflect a rejection of the possibility of - 3 -

2
independence for the territory of Kosovo . That said, and as was mentioned above, if the special
legal régime established by resolu tion1244 is considered to prohi bit the secession of the territory

of Kosovo ⎯ which is the impression created by the reference to the Rambouillet Accords ⎯ that
has no bearing on the legality of the declaration of independence, since the authors thereof did not
adopt it in the capacity of an authority vested, under resolution 1244, with certain powers over the

territory of Kosovo.

___________

2
See inter alia the preamble to the Rambouillet Accords and the explicit reference to re spect for the territorial
integrity of the Federal Republic of Yugoslavia. See also the references to the territorial integrity of the Federal Republic
of Yugoslavia in Chapters 1 and 7.