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

INTERNATIONAL COURT OF JUSTICE

ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL
DECLARATION OF INDEPENDENCE BY THE PROVISIONAL INSTITUTIONS

OF SELF-GOVERNMENT OF KOSOVO

(REQUEST FOR AN ADVISORY OPINION)

REPL Y TO QUESTIONS OF MEMBERS OF THE COURT

BY THE KINGDOM OF THE NETHERLANDS

21 DECEMBER 20091. Introduction

1. On 11 December 2009, during the oral proceedings on the request for an advisory opinion
submitted by the General Assembly of the United Nations on the Accordance with

International Law of the Unilateral Declar.ation of Independence by the Provisional
Institutions of Self-Government of Kosovo, sevyral members of the Court asked questions'tO
participants in the oral proceedings. The Kingdom of the Netherlands wishes to avail itself of
the opportunity to reply to the questions posed by Judges Koroma and Cançado Trindade.

2. Reply to the Question posed by Judge Koroma

2. Judge Koroma asked the following question:

"It has been contended that international law does not prohibit the secession of a territory from a
sovereign State. Could participants in these proceedhjgs address the Court on the principles and rules of
international law, if any, which, outside the coloniafcontext, .permit the secession of a territory from a
sovereign State without the latter's consent?"

3. The Kingdom of the Netherlands appreciates,this question as it is convinced that the Court

will need to interpret treaty provisions relating to self-determination and ascertain the legal
opinions and the practice of States to address this matter (see also para. 9 of the Oral
Statement of the Kingdom of the Netherlands of 10 December 2009). It may safely be
assumed that states with a view on the matter will have expressed that view in the proceedings

in their written submission, written comments, otal statement, or reply to this question.

4. In the view of the Kingdom of the Netherlands, the secession of a territory from a sovereign
State without the latter's consent outside the colonial context may be permitted on the basis of

the right of a people to self-determination. The right to self-determination includes the right of
peoples "freely to determine their political status" (Articles 1 of the 1966 International
Covenant on Economie, Social and Cultural Rights and the 1966 International Covenant on

Civil and Political Rights (1966 Covenants)), "freely to determine, without external
interference, their political status" (GeneralA~,semblyResolution 2625 (XXV) (Resolution
2625), "freely [to] determine their political status" (Section I.2 of the 1993 Vienna
Declaration and Programme of Action, as adbpted by the World Conference on Human

Rights), or "in full :freedom,to determine, wheu and as they wish, their internai and external
political status, without external interference, 'and to pursue as they wish their political,
economic, social and cultural development" (Part VIII of the Final Act of the Conference on
Security and Co-operation in Europe to whJ.ch reference is made in the Preamble to

Resolution 1244) (see also para. 3.4 of the Written Submission of the Kingdom of the
Netherlands of 17April 2009).

5. Resolution 2625 lists modes of irnplementing the right to self-determination of peoples. It

mentions (a) the establishment of a sovereign and independent state, (b) the :freeassociation or
integration with an independent state, and (c) the emergence into any other political status
:freelydetermined by a people. Secession of a territory :froma state necessarily precedes the
establishment by a people of a sovereign and 'independent state, or the :free association or

integration of a people with another state. The text of the Resolution does not lirnit the choice
by a people for a particular mode of irnplem~nting the right to self-determination to the
colonial context. Likewise, the text of the Resblution does not require a people obtain the

consent of the state from which that people seek~to secede. Any limitation of a people's right
to choose a particular mode of irnplementing the right to self-determination can only be

2inferred, a contrario, from the savings clause in Resolution 2625. Pursuant to this clause, the

principle of equal rights and self-determination of peoples is not to be construed "as
authorizing or encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent States". However, it

follows also from this clause that the principle of territorial integrity does not prevail if States
are not "conducting themselves in compliancè with the principle of equal rights and self­
determination of peoples as described above and thus possessed of a government representing
the whole people belonging to the territory without distinction as to race, creed or colour" (see

also para. 3.7 of the Written Submission of the Kingdom of the Netherlands of 17 April
2009).

6. The 1996 Covenants - or any of the other instruments mentioned in paragraph 4 above do
not further elaborate the modes of implementitj.gthe right to self-deterrnination by a people.
However, nothing in these instruments limits ;,the choice for a particular mode to specific

situations, such as the colonial context, or supject the choice for a particular mode to the
consent of the state from which a people seek~ to secede. This view is corroborated by the
travauxpréparatoires of the 1966 Covenants. Inthe course of the negotiations,

"[s]uggestions were made which would indicate the sµbstance of the right ofself-determin a concrete
form. For instance, the right of self-determination should include the right of every people or nation 'to
establish an independent State', to 'choose its own form of government', to 'secede from or unite with
another people or nation', etc. These suggestions were not adopted, for it was thought that any enumeration
of the components of the right of self-determination was Iikely to be incomplete. A statement of the right in
abstract form, as in paragraphf the article, was thought to be preferable."

7. Thus, it must be concluded that the instruments recognizing the right to self-determination
of peoples includes the exercise of this right through secession; and, furthermore, that these
instruments neither limit the exercise of this right through secession to the colonial context

nor to the consent of the state from which a people seeks to secede. What is lacking in these
instruments are only the conditions that must be satisfied for a people to be permitted to
choose one mode of implementing the right to self-determination rather than another. It is on

this point that the legal opinions and the practice of states need to be ascertained. The
Kingdom of the Netherlands has expressed its legal opinion as regards the conditions that
must be satisfied before a people may choose a mode of implementing its right to self­

determination that amounts to the exercise of the right to external self-determination and, by
implication, secession during these proceedings (see paras. 3.9-3.11 of the Written
Submission of 17 April 2009 and paras. 6-8 of the Oral Statement of 10 December 2009 of

the Kingdom of the Netherlands).

8. In this respect, we have noted that it is hardly surprising that there are not many instances

of the lawful exercise of the right to external self-determination outside the context of non­
self governing territories and foreign occupatim;i.First, the post-colonial right to external self­
determination only emerged in the second half 6fthe last century. Second, conditions must be
satisfied before a people may resort to extenial self-determination. In the course of these

proceedings, many instances have been cited where the people concerned did, indeed, fail to
meet these conditions and could not lawfully e:,{ercisethe right to external self-determination.
Yet, there are several instances where the international community has accepted the exercise

of the right to external self-determination outside the colonial context and without the consent
of the state from which the people concerned ;seceded. We have cited the establishment of

1
UN Doc. A/2929 (1955), p. 15 (para. 15); see alM.J;Bossuyt, Guide to the 'Travaux Préparatoires' of the
International Covenant on Civil and Political Rights7),at 34.

3Bangladesh and Croatia as examples (see also para. 10 of the Oral Statement of the Kingdom
of the Netherlands of 10 December 2009).

9. We have also noted that instances where States disintegrated on the basis of consensual

agreement differ from the present case, but are not necessarily irrelevant. In some of these
instances, the peoples concerned acknowledged that the violation of the right to self­
determination in the past had made it impossible for them to continue living together in one

state. We have cited the establishment of Eritre?-and Slovenia as examples (see also para..11
of the Oral Statement of the Kingdom of the Netherlands of 10 December 2009).

1O. In sum, it follows from the instruments recognizing the right to self-determination of

peoples, in particular the 1966 Covenants and:Resolution 2625, that a people may secede
from the territory of a sovereign state without the latter's consent outside the colonial context.

11.The principle of territorial integrity arguably limits the modes of implementing the right to
self-determination by a people outside the colm;lialcontext (see also para. 3.6 of the Written
Submission of the Kingdom of the Netherlands ,'.o1 f7 April 2009). This limitation is reflected

in the savings clause of Resolution 2625, referred to in paragraph 5 above, that seeks to
balance the right to self-determination and the principle of territorial integrity. The balancing
of conflicting norms of international law is govèrned by the principle of equity and takes into
account the speci:ficcircumstances of the case at hand. These considerations have guided the

Kingdom of the Netherlands in the formulati~n of conditions that must be satis:fiedby a
people before a people may secede from a state to exercise its right to external self­
determination.

12. In case of the breach of a people's right to self-determination by the State in which the
people has sought to exercise its right to self-det~rmination, the balance must shift towards the
protection of the right to self-determination. It is a general principle of international law that

the international responsibility of a State which'.isentailed by an internationally wrongful act
involves legal consequences (see Article 28 o~ the Articles on Responsibility of States for
Internationally Wrongful Acts). Speci:ficconsequences apply in case of a serious breach of

obligations under peremptory norms of general ,international law, a category of norms which
arguably includes _theright to self-determination (see also para. 3.2 of the Written Submission
of the Kingdom of the Netherlands of 17 April :2009). If the various modes of implementing

the right to self-determination, as enshrined in the abovementioned instruments, are to have
any meaning, a people must at least be free to choose any of these modes in the case of a
serious breach ofthat people's right toself-deterinination.

3. Reply to the Question posed by Cançado Trindade

13. Judge Cançado Trindade asked the following question:

"United Nations Security Council resolution 1244 (1999) refers, in its paragraph 11 (a) to 'substantial
autonomy and self-government in Kosovo", taking full account of the Rambouillet AccordsIn your
understanding, what is the meaning of thisvoi to the Rambouillet Accords? Does it have a bearing on
the issues of self-determination and/or secession? Ifhat would be the prerequisites of a people's
eligibility into statehood, in the :framework of the legal regime set up by Security Council's resolution
1244 (1999)? And what are the factual preconditiorts for the configurations of a 'people', and of its
eligibility into statehood, under general international làw?" ·

4 14. Paragraph 11 of Resolution 1244 sets out the main responsibilities of the international
civil presence in Kosovo. The reference to the Rambouillet Accords in subparagraph (a)

means that the international civil presence must take full account of the Rambouillet Accords
in the exercise of its responsibility to promote the establishment of substantial autonomy and
self-government in Kosovo. Hence, it provides guidance to the international civil presence for
the exercise of this responsibility. Meaning:ful self-government was established by the

promulgation and implementation of the Constitutional Framework for Provisional Self­
Government in Kosovo; the Constitutional Framework was adopted by the Special
Representative of the Secretary-General on 15 May 2001 and its implementation was
completed at the end of 2003. Due consideration to the Rambouillet Accords only had to be

given in the course of the development of the Constitutional Framework.

15. The reference to the Rambouillet Accords in paragraph 1l(a) of Resolution 1244 does not
have a bearing on the issues of self-determinat~on and/or secession in relation to the current

request for an advisory opinion. Substantial autonomy and self-government in Kosovo were to
be established under Resolution 1244 "pending a final settlement". The international
administration for Kosovo, established by the Security Council under Resolution 1244, was
meant to be an "interim administration" (para. 10 of Resolution 1244). Accordingly,. the

substantial autonomy and self-government in Kosovo under Resolution 1244 was not meant
to continue on a permanent basis. Following the exhaustion of all efforts to achieve a final
settlement and the proclamation of independence of Kosovo on 17 February 2008, it came to
an end.

16. The Kingdom of the Netherlands has addressed the factual preconditions for the
configuration of a 'people', and of its eligibility into statehood, under general international
law in its Written Comments of 17 July 2009. It has argued that anthropological and social

criteria are relevant to determining whether a group of persans constitutes a people.
Anthropological criteria refer to (a) common features of a group of persons, such as their
ethnie origin, their traditions, their culture, their language, their religion or their homeland
(objective criteria), and (b) the will of a group of persans to constitute a people, such as a

sense of kinship (subjective criterion). In view of the anthropological heterogeneity of the
peoples of the world, the presence of any such {eatures varies from people to people, and can
only be identi:fied on a case-by-case basis. Furthermore, common features of a group of
persans and/or the will of such group of persans to be a people may be subject to change over

time (see para. 3.6 of the Written Comments of the Kingdom of the Netherlands of 17 July
2009). For the purpose of the exercise of the right to self-determination by means of the
establishment of an independent state, a people must also have a common territorial basis. A
proclamation of independence must be link~d to this territorial basis, follow existing

international boundaries and former internal boundaries, and respect the principle of uti
possidetisjuris (see para. 3.8 of the written comments of the Kingdom of the Netherlands of
17July 2009).

Lij aa

Represen ative of the Kingdom of the Netherlands
21 December 2009

5