A. Questionaddressedby Judge Koroma:
"It has been contented 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 internationallaw, if any, which, outside the colonial context,permit the secession of a territory from
a sovereignStatewithout the latter's consent?"
Remania's approach
1. During the written and oral proceedings of the case regarding the Accordance with
International Law of the Unilateral Declaration of Independence by the Provisional Institutions of
Self-Government of Kosovo (Request for advisory opinion), Remania submitted that outside the
colonial context, as a rule, secession is prohibited by International Law; there is only a proposed
1
exception to this rule, whose acceptance by International Law is not yet Jully clear. Remania entirely
maintainsthis submission.
2. Romania's position is based on the fact that secession of a territory without the consent of the
sovereignState contravenes the well-establishedprinciples of sovereignty of States, sovereign equality,
territorial integrity and inviolability of borders. These principles represent the legal basis for the rule
generally prohibiting secession. Furthermore, there is no principle or rule of international law that,
outside the colonial context, pennits secession of a territory from a sovereign State without the latter 's
consent.
3. The principle of sovereign equality of States and the principle of territorial integrity impose on
2
States to refrain from recognizing any territorial modification that is the result of an illegal situation •
The International Court of Justice admitted in the Wall Opinion, that "States are under an obligation
not to recognize the illegal situation".3 In Romania's view, the above mentioned principles of
sovereignequality and territorial integrity containtwo legal components: first, recognition and second,
4
the legality of the situation that is recognized, in this case the territorial change. Itis this second
aspect, the legality of the territorial change ("the illegal situation", as the Wall Opinion put it), that
shouldbe examinedby the Court.
1
See Written Comments ofRomania, Chapter 4, paras.110-159, pp.32-45; also Oral Statement ofRomania, CR 2009/32,
2aras.10-21, pp.20-21 (Aurescu) and paras. 2-5, 13-30,pp. 26-27, 30-36 (Dinescu).
UN General Assembly Resolution 2625 (XXV), principle 1,para. 9, principle 5, para. 7.
3Legal Consequences of the Construction of a Wall in the Occupied Palestinian Tenit01y, Advis01y Opinion, ICJ Reports,
2004, p. 200, para. 159.
4Oral Statement ofRomania, CR 2009/32, para. 11 (Aurescu).4. Thus, even if it was arguedby certainparticipants that recognition may fall outside the scope of
the question,it is sure that at least this second component of the principle of territorial integrity,that is
"the illegal situation" related to an alleged change of borders, should be examined by the Court.
Therefore, it is inappropriate to accept the argument that, for the reason that recognition is allegedly
not the object of the question, the Court should not examine whether secession is regulated by
5
international law or not. Romania considers that secession is regulated by international law, as
6
confirmed inter alia by both the Supreme Court of Canada and the Fact-Finding Mission for the
7
Conflict in Georgia: prohibition of secession is the rule, a rule to which there migb.tbe a possible
exception,the so-called "remedial secession".
5. The existence of this exception has been discussed in doctrine and by the Supreme Court of
Canada in its well-known case re Secession of Quebec (1998). Its applicability to the case under
discussion was analyzed by several States in the written and oral pleadings, including Romania. In
answering judge Koroma's question, Romania will not repeat its submissions from the pleadings,
8
while emphasizingthat it fullymaintains them.
6. The "remedial secession" is not an institution specifically established by International Law;
there is no express principle or norm of international law regulating its existence or scope of
application;rather, the concept originates from a certain interpretation of GA Resolution 2625 (XXV)
- the General Assembly Declaration on the Principles of International Law conceming Friendly
Relations and Co-operation among States in accordancewith the Charter of the United Nations, which,
referringto the rigb.tof peoples of self-determination,statesthat
"[...] nothing in the foregoing paragraphs shall 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 conducting
themselves in compliance with the principle of equal rigb.tsand self-determination
of peoples as described above and thus possessed of a govemment representing the
whole people belonging to the territory without distinction as to race, creed or
color."g-
A similar language can be found in the Vienna Declaration of the UN World Conference on Human
Rigb.ts,25 June 1993. 10
5Oral Statement of Romania, CR 2009/32, para. 11 (Aurescu).
6Oral Statement ofRomania, CR 2009/32, para. 3 (Dinescu).
7Ibidem, para. 23.
8 Written Comments of Romania, paras.138-159, pp.40-45; also Oral Statement of Romania, CR 2009/32, paras.25-30,
9p.34-36 (Dinescu).
1AIRES/2625 (XXV).
° Chapter I, para.2 (on the right of peoples to self-deterrnination); available at
http://www2.ohchr.org/englisb/law/vienna.htm.
27. Stemming from this language, it can be argued that, in cases where States do not conduct
themselves in compliance with the principle of equal rights and self-determination of peoples and thus
are notpossessed of a government representing the whole people and abusively exclude a certain part
of it from the government on consideration of race, creed or color, the right to self-determination could
be invoked in order to remedy this situation, by a secession of the territory inhabited by that part of the
people discriminated and abusively excluded from the government of the State.
8. The doctrine and the Supreme Court of Canada developed this interpretation into the notion of
what became to be known as "remedial secession" - i.e. the possibility of the secession of a territory
from a State without the latter' s consent, in most extreme situations characterized by the total denial of
an.yrole in the government to the inhabitants of that particular territory or other gross violations of
their human rights, and only if no other remedies preserving the territorial integrity of the State exist.
Remedial secession would thus be only a last-resort solution.
9. The concept of "remedial secession" is still far from the general acceptance in doctrine,
jurisprudence or State practice. The very recent Report of the Independent International Fact-Finding
Mission on the Conflict in Georgia, 11as well as the opposing views expressed by various States that
took part to the procedures of the present case are clear in this respect.
10. The inapplicability of the "remedial secession" in the given circumstances of the Kosovo case
was presented in detailed in the Written and Oral Statements of Romania. 12
Conclusion
Taking into consideration all the above, the answer to Judge Koroma's question is: There is no
principle or rule of international law permitting, outside the colonial context, the unilateral secession of
a territory from a sovereign State without the latter's consent. The rule is that, outside the colonial
context, the secession of a territory from a sovereign State without the latter' s consent is prohibited.
The only exception to this rule - the so-called "remedial secession" - is a doctrinal andjurisprudential
construction, still controversial and lacking general acceptance in international law.
11Quoted in the Oral Statement of Spain, CR 2009/30, para.44, p.19 and ofRomania, CR 2009/32, para.22, p.33 (Dinescu).
12Written Comments ofRomania, paras.138-159, pp.40-45; also Oral Statement ofRomania, CR 2009/32, paras.25-30,
pp.34-36 (Dinescu).
3B. Question addressed by Judge Cançado Trindade
"United Nations Security Council resolution 1244 (1999) refers, in its paragraph 11 (a), to "substantial
autonomy and self-goveming 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? Ifso, what would be the prerequisites of a
people's eligibility into statehood, in the framework of the legal regime 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?"
Romania's approach
1. References to the Rambouillet Accords in the UNSC Resolution 1244 are to be found in four
instances:
i) para.11 lit.(a): "promoting the establishment, pending a final settlement, of substantial autonomy and
self-government in Kosovo, taking full account of annex 2 and of the Rambouillet accords";
ii) para.11 lit.(e): "facilitating a political process designed to determine Kosovo's future status, taking
into account the Rambouillet accords";
th
iii) annex 1, 6 tirée: "A political process towards the establishment of aninterii:npolitical framework
agreement providing for a substantial self-government for Kosovo, taking full account of the
Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic
ofYugoslavia and the other countries of the region, and the demilitarization of the KLA";
iv) annex 2 para.8: "A political process towards the establishment of an interim political framework
agreement providing for substantial self-government for Kosovo, taking full account of the
Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic
of Yugoslavia and the other countries of the region, and the demilitarization of UCK. Negotiations
between the parties for a settlement should not delay or disrupt the establishment of democratic self
governing institutions".
2. These references can be grouped in two categories: references to the Rambouillet Accords in
the context of the interim status of substantial autonomy and self-government in Kosovo pending the
final settlement (points i), iii) and iv) above) and a reference to the Rambouillet Accords in the context
of Kosovo's future status (point ii) above). Even though Judges Cançado Trinidade's question
concerns only the reference from point i) above, Romania will consider all references to the
Rambouillet Accords found in Resolution 1244.
43. From the outset it has to be mentioned that allreferences to the Rambouillet Accords establish
the obligation to "take account of' or "take into account" the said accords. The references in the
context of the interim period provide for full account to be taken of the Rambouillet Accords, as well
as of other elements, the principles of sovereignty and territorial integrity of the Federal Republic of
Yugoslavia being among these. On the other hand, the reference in the context of the final settlement
reads only "taking into account the Rambouillet accords" - the word "fully" is not included in the
phrase any more. Considering the coherence of the language in the other three instances where
references to the Rambouillet Accords are made, the exclusion of the word "fully" in this situation
cannotbe seen as apure technical occurrence.
4. Romania remarks that the language used in Resolution 1244 does not give the Rambouillet
Accords the legal value of a document in conformity with which the interim or final status of Kosovo
have to be determined. Resolution 1244doesnot provide for the interim or final status ofKosovo to be
"in conformity with" or "according to" or "in accordance with" or "on the basis of' the Rambouillet
Accords. A far softer language is used. Furthermore, while regarding the interim status the
Rambouillet Accords are to be taken fully into account, they are only one element among others,
including the sovereignty and the territorial integrity of the F.R. of Yugoslavia. Regarding the final
status,the Rambouillet Accords onlyhave to be "taken into account" - not evenfully.
5. In conclusion, the renvois to the Rambouillet Accords from Resolution 1244 are to be
understood as indications of elements to be taken into consideration, for instance, when designing the
interim status of Kosovo during the provisional international administration or when negotiating the
final settlements.n the former situationsthe accordshave to be fully taken into account,togetherwith
other equally important elements. In the latter they only have to be taken into account. By no means it
canbe submitted that the Rambouillet Accords areto be considered the legal basis for the finalKosovo
status or that this status has to fullyrespect all of theirprovisions.
6. Regarding the relation between the references to the Rambouillet Accords and the issues of
self-determination or secession, one should remark that such a question can be posed only in
connection to Kosovo's final settlement. In what concerns the interim status, during the provisional
international administration, the status of Kosovo as an integral part of Serbia, enjoying substantial
autonomy and self-government, was not questioned. As such, the references to the Rambouillet
Accords concern renvois to the relevant provisions of the accords regarding the framework of the
substantialautonomy andthe coordinatesof the presence of the international community.
57. On the other hand, during the procedures of the present case, it was submitted that the renvoi to
the Rambouillet Accords from para.11 lit.(e) of Resolution 1244 does have a very important
significance in the context of the final status of Kosovo. In this context, a particular importance was
given to para.3, of Art. I of Chapter 8 of the Rambouillet Agreement, which reads as follows:
"Three years after the entry into force of this Agreement, an international meeting
shall be convened to determine a mechanism for a final settlement for Kosovo, on
the basis of the will of the people, opinions of relevant authorities, each Party' s
efforts regarding the implementation of this Agreement, and the Helsinki Final Act
[...]".
In view of this language, as well as of the renvoi to the Rambouillet Accords from Resolution 1244,
two arguments were developed:
- that there is no need for an agreed solution on the final status of Kosovo, since there is no mention of
a "veto" power of either of the parties;
- that the term "will of the people" means that Kosovo has the right to self-determination, implying
secession from Serbia even in the absence of Serbia's consent.
Since the question put by Judge Cançado Trinidade refers only to the second issue, this comment will
refer only to this issue, while reiterating the submissions regarding the need for an agreed solution
from Romania's written and oral statements.
8. The renvoi to the Rambouillet Accords from para.11 lit.(e) of-Resolution 1244 cannot be
interpreted in the sense that Resolution 1244 thus provided for Kosovo to be entitled to the right to
self-determination, including unilateral secession from Serbia, for several reasons.
9. First, the "will of the people" is not the sole criterion to be considered. It is only one from
several criteria, among which the need to observe the principles enshrined in the Helsinki Final Act is
of particular importance. The cornerstones of the Helsinki Final Act are the principles of sovereign
equality, inviolability of frontiers and territorial integrity of States. The language of art.I para 3 of
Chapter 8 the Rambouillet Agreements is clear: there is no hierarchy among the elements to be
considered or a pre-eminence of a certain element among the others. The "will of the people" is not the
main, or the most important element, and the final status of Kosovo has to take into account, for
instance, the territorial integrity of Serbia as muchas it has to consider "the will of the people".
10. Second, the term "will of the people" is not the same as "self-determination". This is obvious
from the travaux preparatoirs of the Rambouillet Accords. Thus, the Kosovo delegation submitted the
proposai for a new paragraph to be included, reading "The people of Kosovo are entitled to the right to
6self-determination. This right shall be exercised at the conclusion of the interim period of three
years."13This proposition was finally not included in the text of the Agreement.
11. Third, the "will of the people", together with the other elements, including the principles
provided by the Helsinki Final Act, merely have to be "taken into account". Resolution 1244 does not
even ask for full account to be taken of it, unlike in other situations. Thus, in no way can it be
attributed to the notion the significance of conferring to Kosovo the "right" to unilaterally secede from
Serbia.
12. Forth, the notion is not clear. The term "people" of Kosovo is not used even once in the
Rambouillet Accords; in exchange, the term "population of Kosovo" is used whenever necessary to
refer to the inhabitants of Kosovo. The sole place where the term "people" is used in the Rambouillet
Accords is in art. I para.3 of Chapter 8 - the reference to the ''will of the people". The "people" in
discussion is not specified. The States that equal tbis reference with the entitlement of Kosovo to self
determination obviously understand that the provision refers to the "will of the people of Kosovo".
Nevertheless, there is no such specification in the text of the Rambouillet Accords, and the notion of
"people of Kosovo" is not used at all throughout the agreement, unlike the notion of "population of
Kosovo" which is used whenever necessary. Having carefully analyzed the text of the Rambouillet
Accords, Romania submits that it contains no definition or consecration of the ''Kosovar people" or the· ·
"Kosovo people".
13. In conclusion, in answering to Judge Cançado Trinidade's question, Remania submits that the
renvois to the Rambouillet Accords in Resolution 1244cannot be interpreted as entitling Kosovo to the
right of self-determination implying secession from Serbia without Serbia's consent. The renvois are
only indications to the elements and criteria to be taken into account by the international community
and the interested parties in shaping the status of substantial autonomy and self-government of Kosovo
during the provisional international administration, as well as during the process for final settlement.
The legal regime set up by Resolution 1244 does not regulate the entitlement of Kosovo, as a "people",
to external self-determination or statehood by unilateral secession from Serbia.
14. Regarding the final part of the question put by Judge Cançado Trinidade, conceming the
factual preconditions for the configuration of a "people" and of its eligibility into statehood under
general international law, Remania reiterates its submission from its Written Statement: outside the
colonial context, "peoples", as subjects to international law entitled to the right to self-determination,
13
Kosova Delegation Statement on New Proposal for a Settlement, 18 February 1999, in Mark Weller, The Crisis in
Kosovo 1989- 1999, Documents and Analysis Publishing Ltd., Cambridge, pp. 444-445.
7are the peoples of the existing States, with no distinction of ethnicity, race or creed. As such, they are
entitled to the exercise of their right to self-determination, by determining, in full :freedom,their
internai and extemal political status, without extemal interference, and by pursuing as they wish their
14
political, economic, social and cultural development.
15. Most :frequently,within the peoples of the existing States there are groups which differ :from
the main group or among themselves, on consideration of ethnicity, language, race or religion. The
persons belonging to such national, ethnie, linguistic, racial or religious minorities enjoy all rights
recognized to human beings, in particular the rights tailored for the specific situations of persons
belonging to such minorities. They also enjoy the right to intemal self-determination, together with the
rest of the people of the States in which they live. On the other hand, it is widely admitted that such
minorities do not enjoy the right to extemal self-determination, i.e. of secession :fromthe existing
States, so they arenot eligible for separate statehood. 15
15. On1yonepossible exception :fromthis rule transforms parts of the peoples of the existingstates,
in extreme circumstances, into entities eligible for statehood: the so-called "remedial-secession".
Romania re-iterates its findings regarding this concept :fromthe answer to the question put by Judge
Koroma andwill not repeat them.
14Written Comménts of Romania, Chapter 4, paras.110-130, pp.32-38; also Oral Statement of Romania, CR 2009/32,
paras. 13-15,pp. 30-31 (Dinescu).
15For an accurate presentation of the rights ofpersons belonging to national minorities, see RosalynHiggins, Problems &
Process; lntemational Law and How We UseIt, Clarendon Press, Oxford, 1996, pp.124-125.
8
Reply of Romania to questions posed by Judges Koroma and Cançado Trindade
at the close of the oral proceedings