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

Question put 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?

Answer of the United States of America

As many participants in these proceedings have emphasized, the question before the
Courtis limited to the narrow, somewhat anomalous, question of whether Kosovo's declaration
of independence is "in accordance with international law." Yet a declaration of independence is

a political expression of a will or desire by an entity to be accepted as a state by the members of
the international community, an event that international law does notas a general matter prohibit,
1
authorize or indeed regulate as such. Wbile international law may govern situations involving
declarations of independence to the extent that international law would otherwise regulate the
circumstances, as in cases where a declaration is conjoined with illegal uses of force or violations

of other peremptory norms of international law, such as the prohibition against apartheid,2there
is nothing about the cir~umstances of Kosovo' s particular declaration of independence that
3
would render it a violation of international law. Accàrdingly, the declaration is-in the words·
of the question before the Court-"in accordance with international law", and the United States

respectfully submits that there is no need to search for a rule of international law providing
affirmative authorization for the declaration.

1 See generally, Written Statement of the United States of America ("U.S. Written Statement'') pp. 50-55; Written
Comments of the United States of America ("U.S. Written Comments"), pp. 13-20; see also Verbatim Record, C/R

2009/30, 8 December 2009, pp. 23-24 (paras. 3-4) (United States of America), 29-30 (paras. 18-20) (ibid.);
Verbatim Record, CR 2009/32, 10December 2009, pp. 48-54 (paras. 9-30) (United Kingdom).

The principle of territorial integrity, which Serbia and its supporters have argued operates to render internationally
unlawful declarations of independence by non-state actors, does not apply. For that principle of international law
governs relations between and among states, and does not preclude declarations of independence by non-state
entities. See U.S. Written Comments, pp. 15-20; see also Verbatim Record, CR 2009/32, 10 December 2009, p. 53
(para. 26) (United Kingdom) (noting that the primary function of territorial integrity "is the protection of the State

from external intervention; it is not a principle which determines how the State shall be configured internally, still
Jessis it a guarantee against change.").

The absence of prohibition is further confirmed by the broad consensus among commentators that secession-which
frequently involves a declaration of independence as an earlytep--is a matter of fact. See Malcolm Shaw, "Re:
Ortler inCouncil P.C. 1996-1497 of 30 September 1996," in Self-Determination in International Law: Quebec and
Lessons Learned, p. 136 (Anne Bayefsky, ed. 2000) ("as a matter of law the international system neither authorises
nor condernns such attempts, but rather stands neutral. Secession, as such, therefore, is not contrary to international
Iaw."); James Crawford, The Creation of States in International Law, 2 nded., Oxford, OUP, 2006, pp. 389-90

("secession is neither legal nor illegal in international law, but a Iegally neutral act the consequences of which are
regulated internationally.").
2
See U.S. Written Statement, p. 56; U.S. Written Comments, p. 13.
3
See U.S. Written Statement, pp. 56-60.

-1- There has never been a need for international law ru.lesexpressly authorizing declarations

of independence or the secession of a territory from a sovereign State without the latter's
consent. The need for such affirmative authorization might arise if, as Serbia and many of its
supporters argue--erroneously in our view-international law contained a general prohibition

against secession and declarations of independence. If one accepted that premise, one would
then need to identify exceptions to this general prohibition to account for the fact that,

undeniably, the international community has regularly accepted declarations of independence as
permissible under international law, including those declarations made outside of the colonial
context or cases of illegal annexation. For its part, Serbia has argued that exceptions exist where

domestic law grants a right of secession or where the parent state accepts the secession before or
soon after the secession. 4 However, Serbia has failed to cite to any principles of international
5
law that would provide a basis for these proposed conditions. Serbia has argued that
"exceptions" to general ru.lesexist to explain the world as it actually is, when in fact there is no
need to postulate such "exceptions", when no such general rule exists to which such exceptions
6
are needed.

There is a separate issue of whether situations exist outside the colonial context in which

there is an affirmative right of secession under general international law provided by the right of
self-determination. Serbia has argued unequivocally that there is no such right. But as this Court
well knows, this issue has been the subject of much debate internationally, and even some of

Serbia's staunchest supporters have argued that a right of remedial/external self-determination
exists in appropriate cases. 7 As our Written Comments detail, the complexity of these issues
would be multiplied in the case of Kosovo, where the Security Council' s actions under Chapter

VII of the United Nations Charter not only affected the legal terrain, but also reflected an
international understanding that the people of Kosovo suffered especially egregious harm,
8
warranting special measures by the international community to protect them. In any event,
secession need not be an exercise of the right of self-determination to be consistent with
international law. As Judge Higgins has explained-

Even if, contrary to contemporary political assumptions, self-determination is not
an authorization of secession by minorities, there is nothing in international law
9
that prohibits secession or the formation of new states.

In the fmal analysis, the United States respectfully submits that there is no need for
inquiry into whether international law affirmatively authorized the declaration of independence,

or into these other issues regarding self-determination and a right to secede. The sole narrow
question presented by the General Assembly to the Court is whether Kosovo's declaration of

4
See Written Statement of the Government of the Republic of Serbia, para. et.seq.
5
See U.S. Written Comments, n. 40; Verbatim Record, CR 2009/30, 8 December 2009, pp. 29-30 (paras. 18-20)
(United States of America).
6
Verbatim Record, CR 2009/30, 8 December 2009, p. 29 (para. 18)(United States).
7 See, e.g.Written Statement by the Russian Federation, para. 88.

8 See,U.S. Written Comments, pp. 21-23.

9 Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994), p. 125 (emphasis in
original)

- 2 -independence is in accordance with international law. Thus, the absence of any rule of
international law prohibiting the declaration of independence should end the Court's analysis of

generalinternational law in this case.

- 3 - Question put by Judge Cançado Trindade

United Nations Security Council resolution 1244 (1999) refers, in its paragraph ll(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?

Answer of the United States of America

As the Court is aware, the position of the United States throughout these proceedings has
been that international law does not as a general matter regulate declarations of independence, 1

and that Kosovo' s declaration of independence is in accordance with international law regardless
of whether one concludes that it had a right to declare independence under general international
law regarding self-determination. 2 Nonetheless, in the United States' view, the reference to the

Rambouillet Accords in paragraph 1l(a) does bear on the issue of Kosovo's declaration of
independence. 3

Paragraph 11 of Resolution 1244 sets forth the main responsibilities of the-international

civil presence in Kosovo. Paragraph 1l(a) describes the key responsibility for the international
civil presence during the early years following adoption of the resolution as promoting the

establishment of "substantial autonomy and self-government in Kosovo." The provision makes
clear that, in undertaking these efforts, the international civil presence was to take full account of
the Rambouillet Accords. In practice, pursuant to its mandate under paragraph ll(a), the

international civil presence was instrumental in promoting the development of political
institutions under which the people of Kosovo could govern themselves free from Serbia's
coercion. By so doing, Resolution 1244 enabled the people of Kosovo to develop the capacity

for self-government as an independent country by the time that independence was declared in
February 2008. The efforts of the international civil presence under paragraph ll(a) culminated

in the promulgation of the Constitutional Framework for Provisional Self-Government, under
which were established institutions to effectuate substantial autonomy and self-government in

1
See Written Statement of the United States of America ("U.S. Written Statement''), pp. 50-56; Written Comments
of the United States of America ("U.S. Written Comments"), pp. 13-20.
2
See, e.g., U.S. Written Comments, pp. 21-23; Verbatim Record, CR 2009/30, 8 December 2009, p. 38 (para. 38)
(United States of America) (noting that Kosovo's declaration ofindependence need not be an exercise of the right of
extemal self-determination to be consistent with international Iaw); Rosalyn Higgins,oblems and Process:
International Law and How We Use it (1994), p. 125("Even if, contrary to contemporary political assumptions, self­
determination is not anuthorization of secession by minorities, there is nothing in international Iaw that prohibits
secession or the formation of new states.") (emphasis in the original).

3 The United States takes this opportunity to underscore that the narrow question before this Court on referral from
the General Assembly concerns only the accordance of the declaration ofindependence of Kosovo with international
law, and not secession or other potentially-related issues, such as whether Kosovo qualifies as an independent state,
whether third states may recognize or treat it as an independent state, how UNMIK should now relate to it, or

whether further status negotiations can or should now be undertaken. See Verbatim Record, CR 2009/30, 8
December 2009, pp. 36-37 (para. 35) (United States of America). Kosovo--an assembly, a president, courts, ministries and other institutions of government were
established-and intemationally-recognized hum.an rights nqrms were enshrined as a
4
fundamental part ofKosovo's law.

The views of the United States on the reference to the Rambouillet Accords in paragraph

1l(a) are set out at pages 64-65 of our Written Statement. As indicated in our Written Statement,
the reference signaled that:

-- the arrangements put in place during the interim period under Resolution 1244

were designed to promote the kind of autonomy that would have govemed during
the interim period under the Rambouillet Accords; and

-- th.osearrangements were to be structured with an eye towards the arrangements
for future status contemplated by Rambouillet, including but in no sense
mandating the possibility of independence.

If the Court should find it necessary to take up the question of self-determination, the
references to Rambouillet in paragraph 1l(a), as well as the terms and structure of the
Constitutional Framework promulgated pursuant to the authority of this provision, both provide a

basis for concluding that it would be appropriate in the contex.t of Resolution 1244 to view
___o_s_QY()_ase _naity_pJJ:hetyp~Jhat coulçlbecorp,eÎ1ldepei;ig_eo nter time~_

-- Rambouillet itself treats Kosovo as a distinct territorial unit, to be separately
govemed in a democratic manner; entitled to its own legislative, executive,
judicial, and other institutions, and its own Constitution; and entitled to

international protection against oppression by the state of which it had formed a
part;5

4
See Constitutional Framework, UNMIK Regulation No. 2001/9 [DossierNo. 156].
5See Rambouillet Accords, S/1999/648. 18 February 1999 [Dossier No. 30]. Rambouillet of course also speaks of

the "will of the people." For its part, Serbia has argued that the reference to the "will of the people" in Rambouillet
should be understood as a reference to something other than the will of the peoplesovo. As we indicated in
our Written Comments:

The "will of the people" is a phrase derived at least in part from the historical traditions of the
United States, including notably the famous statement by United States President Thomas
Jefferson in an 1801 letter that "the will of the people ... is the only legitimate foundation of any
government, and to protect its free expression should be our first object." Letter from Thomas
Jefferson to Benjamin Waring (reproduced in The Writings of Thomas Jefferson, Memorial
Edition,Vol. 10 (Lipscomb and Bergh, eds. 1904), p. 236). Serbia's argument is based on the fact

that other provisions in the Rambouillet Accords refer to the "population of Kosovo" and thus the
different phrase "people" must refer to something other than the "population of Kosovo." Beyond
the fact that the context in which Rambouillet refers to the "Kosovo population" is so different
(e.g.references in various provisions to certain percentages of the "population of Kosovo," in
which substitution of the word "people" would not be normal English phrasing) the inference
Serbia seeks to draw simply does not follow, and the people of Kosovo are indeed the very people
that the Rambouillet Accords are about.

U.S. Written Comments, n. 89. The meaning of the phrase "will of the people" was subsequently confirmed by its
usage in the Constitutional Framework, which refers repeatedly to the "people of Kosovo" and leaves no doubt that
the phrase "will of the people" was understood by the international civil presence authorized under Resolution 1244

-2- -- for its part, the Constitutional Framework similarly provides that "Kosovo is an
undivided territory," that Kosovo and its people had "unique historical, legal,
6
cultural and linguistic attributes," that full account needed to be talŒn o7 the "will
of the people" in the process of facilitating Kosovo' s future status, and that the
term "people" indeed referred to the "people ofKosovo"; 8 and

-- as the United States made clear in its oral pleadings, "if the Court should find it
necessary to examine Kosovo' s Declaration through the lens of self­

determination, it should consider the unique legal and factual circumstances of
this case, which include the extensive Security Council attention given to Kosovo;

the large-scale atrocities against the people of Kosovo that led to Rambouillet and
the 1244 process; the United Nations concern for the will of the people of
Kosovo, their undivided territory and the unique historical, legal, cultural and

linguistic attributes; the lengthy history of Kosovo's autonomy; the participation
of Kosovo's representatives in the internationally led political process; the

commitment of the people of Kosovo in their Declaration to respect prior Security
Council resolutions and international law; and the decision by United Nations
9
organs to leave undisturbed Kosovo's move to independence. "

Serbia has suggested that the references to the Rambouillet Accords in Resolution 1244
were·designëd to·make clear that the·secessionof Kosovo was prohibited. 10 But at the time·that

Resolution 1244 was adopted, Belgrade argued precisely the opposite: that paragraph 11 "opens
up the possibility of the secession of Kosovo and Metojiha from Serbia and the Federal Republic
11
of Yugoslavia." As we have described in our written and oral presentations, the FRY
contended at the time that Rambouillet was a "crude and unprecedented attempt to impose a

solution clearly endorsing the separatists' objectives" and the FRY rejected the Accords in no
small part because it could not agree to Kosovo's secession - either immediately or following the
interim period that would have been established under Rambouillet. 12 Similarly, with respect to

the Constitutional Framework, at the time that it was promulgated Serbia complained about its
many provisions that suggested that Kosovo could be considered a self-determination unit,
13
capable of becoming independent. In sum, the reference in Resolution 1244, paragraph 1l(a),

as meaning the will of the people of Kosovo. See Constitutional Framework, UNMIK Regulation No. 2001/9
[Dossier No. 156].

6Constitutional Framework, UNMIK Regulation No. 2001/9, Chapters 1.1 and 1.2 [Dossier No. 156].

7Ibid., preambular para. 6.
8
See, e.g., ibid., preambular paras. 4, 5, and 8; Chapter s 1.1, 5.7, and 6.
9
Verbatim Record, CR 2009/30, 8 December 2009, p. 38 (para. 39) (United States of America).
10
See, e.g., Written Statement of the Republic of Serbia, paras. 781-84; Verbatim Record, CR 2009/24, 1 December
2009, p. 71 (para. 24) (Republic ofSerbia).
11
Remarks of Mr. Jovanovié, Chargé d'affaires of the Permanent Mission of Yugoslavia to the United Nations, in
Security Council debate on adoption ofResolution 1244, S/PV.4011, 10June 1999, p. 6 [Dossier No. 33].
12 th
See Security Council, 3988 Meeting, S/PV.3988, 24 March 1999, p. 14; U.S. Written Comments, pp. 27-29;
Verbatim Record, CR 2009/30, 8 December 2009, p. 31 (para. 23) (United States of America).
13
See Letter dated 5 June 2001 from the Permanent Representative ofYugoslavia to the United Nations addressed to
the President of the Security Council, S/2001/563, para. 1[Dossier No. 159].

-3-to "substantial autonomy and self-government in Kosovo," taking full account of the

Rambouillet Accords, only confirms our view that Kosovo's ultimate declaration of
independence-which both the Resolution and Rambouillet anticipated, but did not mandate­
was "in accordance with international law."

-4-