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

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

[Translation]

Reply of the French Republic to the question

posed by Judge Cançado Trindade

1. Judge Cançado Trindade’s qu estion relates to two sets of problems, one of which, for the

reasons already mentioned by France in its written and oral pleadings, has nothing to do with the
question submitted to the Court by the General As sembly: the point as to whether Kosovo is a
State is not at issue in this case 1 whereas, as France has already pointed out , it is superfluous to

consider whether the people of Kosovo had a ri ght to self-determination since it is sufficient to
observe that the declaration of independence was not contrary to international law.

2. The aspects of Judge Cançado Trindade’s question relating to the reference to the
Rambouillet Accords contained in Security Counc il resolution1244(1999) call for the following

two observations.

3. First, the fact that the Rambouillet Accords 3 laid down interim rules governing an

autonomous status for Kosovo and made provision, to that end, for the establishment of the
“institutions of democratic self-government in Kosovo” 4 confirms that the people of Kosovo
(whatever international rights they may have possessed) were in fact democratically represented by

the above-mentioned institutions. This explains why Chapter8 of the Accords, for its part, also
refers to the “will of the people” of Kosovo. In this connection, there is a link between the
provisions relating to the interim status and tho se relating to the final status of Kosovo, which

concern the same entity.

4. Notwithstanding, that does not mean that the interim régime and the final status rested on
identical principles. Secondly, in fact, if paragraph11 (a) of resolution1244(1999) referred, like
paragraph 11 (e), to the Rambouillet Accords, it was on the basis of the distinction made in those

Accords between the precisely defined solutions adopted for the interim régime and the options left
open for final status, framed solely in terms of th e reference to respect for the “will of the people”
of Kosovo and the “opinions” of the relevant authorities.

5. With regard to the interim régime, paragraph11 (a) of resolution1244(1999) has to be

understood as referring only to the provisions of the Rambouillet Accords that relate to the interim
status of Kosovo. This reference is qualified by the words “pending a final settlement”, and it
specifically relates only to a régime of autonomy, for which reason the Security Council

simultaneously referred in this context both to th e Accords and to Annex 2 of the resolution. The
relevant provisions of the Rambouillet Accords in this connection are contained in Chapter1
establishing an “ interim Constitution” for Kosovo, while Chapters2 to 7 are concerned with the

powers of the international authorities that are to be responsible for monitoring the proper

1Written Statement, p.19, para.1.14; Written Comments, pp.4-5, paras.10-11CR2009/31, p.10, para.6 and
p. 15, para. 17 (Belliard).
2
Written Comments, p. 13, para. 31; CR 2009/31, p. 16, para. 20 (Belliard) and p. 18, para. 5 (Forteau).
3
Accords reproduced in S/1999/648.
4Ibid., Chap. 1, preamble to the “Interim Constitution”. - 2 -

implementation of the Rambouillet Accords and organizing the interim régime (cessation of
hostilities, elections, role of KFOR, the OSCE and th e Security Council in particular). Details of

all these aspects are set forth in no fewer than 64 pages.

6. On the other hand, as far as the final status of Kosovo is concerned, it is clear that the

Rambouillet Accords did not seek to prejudge the outcome. Only Article1, paragraph3, of
Chapter 8 of the Accords (containing final clauses) deals with the matter, which is left totally open,
subject to account being taken of the “will of the people” of Kosovo. The Security Council drew

the necessary consequences in paragraph11 (e) of resolution1244(1999) by referring to the
Rambouillet Accords ⎯ and necessarily to Chapter 8 thereof sin ce the final status of Kosovo is at
issue ⎯ solely in connection with a “political pr ocess” to be “facilitated”, without any mention

being made in this instance of the single option of “substantial autonomy and self-government” and
without any reference being made to Annex 2 of the resolution.

7. The stark difference in the approach adopted to the question of interim status, on the one
hand, and final status, on the other, confirms the total neutrality of resolution1244(1999)
regarding the question put to the Court.

Reply of the French Republic to the question
posed by Judge Koroma

5
1. As France has argued in its written and oral pleadings , international law tolerates
secession, within the literal and precise meaning of this verb: although international law does not
prohibit secession, save in cases where it is accompanied by the violation of fundamental principles
of international law such as the prohibition of th e use of force in international relations in

accordance with the United Nations Charter, or again the prohibition of apartheid, the right to
independence and, hence, the right to secession, also does not exist in international law, outside the
context of decolonization.

2. The absence of a rule authorizing seces sion does not in any sense mean that such
secession would contravene international law; on the contrary, the absence of such a permissive
rule attests to the fact that international law exhibits complete neutrality in the matter. This

neutrality of international law is the consequence of the very nature of the process whereby States
are formed: as the creation of a new State is a question of fact, international law can only record
the existence of the new State and draw the n ecessary legal consequences in terms of rights and

obligations henceforward attached to its status as a State.

3. In view of this lack of a rule of international law ⎯ be it prohibitive or permissive ⎯

regarding the accession of a State to independence by means of secession from a pre-existing State,
a declaration of independence cannot, a fortiori, be deemed in itself not to accord with international
law.

___________

5
Written Statement, pp. 25-27, paras. 2.2-2.10; CR 2009/31, p. 15, para. 18 (Belliard).