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UNITED KINGDOM'S RESPONSE TO THE QUESTIONS PUT BY
JUDGES KOROMAANDCANÇADOTRJ.NDADE
1. Judge Koroma put the folJowing question to the participants at the end of
the oral proceedings:
«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 territoryfrom a sovereign State without the latter's
consent?~'
2. As the United Kingdom stated in oral argument, international law contains no
prohibition against declarations of independence as such. 1 Whether a declaration of
independence leads to the creation of a new State by separation or secession depends
not on the fact 2f the declaration but on subsequent developments, notably recognition
by other States. As a general matter, an act not prohibitedby internationallaw needs
no authorization. This position holds with respect to States. It holds alswith respect
to acts of individuals or groups, for international law prohibits conduct of non-State
entities only exceptionally and where ex.presslyindicated.
3. In certain circumstances, the rightof self-determination may entai! a rightto
3
form. an independent State. The Advisory Opinions in the Namibia,WesternS .ahara,
and Wall cases do not exhaust the situations in which the Court might address self
determinàtion. The United Kingdom has not considered that issue in the
circumstances of the prcsent case, though a number of participants in the present
proceedings have explored it4in detail, including the issue of self-determination
outside the colonial context.
4. As guardian of the constitutional order of Canada, the Supreme Court of
Canada made the point that, if an affirmative right to secession exist5 under
intemational law, this would be only in ''exceptional circumstances ..." But the
question ad.opted by the General Assembly in these proceedings is not phrased in
tenns of authorisation or permission.
5. Before World Wru:I, secession was quite common as a means by which new
States were created. No prohibition against declarations of independence leading to
separation or secession appears in inter-War practice. Nor did the Charter introduc:.e
such a prohibition in 1945. In practice, since 1945, and in particular since 1991, there
have been numerous instances of State creation, including by way of declarations of
independence. No new prohibition, however, has emerged from the practice.
1CR2009/32,pp.48-52,paras.9-22.
2See further,James CrawfordThe Creation Scaresin lnternational L(2 edn, OUP, 2006) pp.
539-546.
3SeeCra.wfordCreation of Stares,l07-131.
4See, for example, CR 2009/32, p.9, paras.7-8 (Lijnzaad, Nerherlands); CR 2009/26, pp.18-23,
paras.2-17(Gill,Albania).
CR2009/32,p.51,para.19(emphasisadded),quotingReferencereSecessionofQuebec, 1998,2 SCR
217,para.112.
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Furthennore, no prohibition emerged from the Quebec referencc: the only national
court proceedings in which the right to secede was expressly and thoroughly explored.
The experts presenting opinions to the Canadian Supreme Court in the Quebec
reference, both for the amicus curiae representing the interests of Quebec and for the
Government of Canada, agreed that international law does not prohibit secession. 6
The Supreme Court did not disagree. 7
6. It has also been noted in the present proceedings that certain international
instruments contain terms concerning the rights of peoples or communitics within
States (outside the context of decolonization): see e.g. the Dec8aration on the Rights
of Indigenous Peoples, GA res 61/295, 13 September 2007. Article 46(1) of the
Declaration makes it clear that itdoes not (a) suggest "for any State, people, group or
person any right to engage in any activity or to perform any act contrary to the Charter
of the United Nations", or, separately, (b) authorize or encourage "any action which
would dismember or impair, totally or in part, the territorial integrity or political unity
of sovereign and independent States". This is a necessary precaution given the
subject-matter of those dcclarations. It is also a precaution phrased in terms of the
scope, ratione materiae and ratione pe1·sonae, of obligations existing under the
Charter. It does not equate declarations of independence with violations of the
Charter, nor does it evidence the existence of a blanket prohibition undcr international
law on declarations of independence in all circumstances or suggest a further
9
extension of the international law obligations of non-State actors.
7. Judge Cançado Trindade put the following question to the participants at
the end oftheoral proceedings:
'·United Nations Security Council resolution 1244 (1999) refers, in ts
paragraph 11 (a),to "substantial autonomy and self-government in Kosovo",
taking full account of the Rambouillet Accords. In your understanding, what
isthe meaning of this renvoi to the Rambouillet Accords? Does it have a
bearing on the issues of sclf-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?"
8. Paragraph ll(a) of Security Council resolution 1244 (1999) concemed an
interim period, characteriscd by substantial autonomy and self-govemment in
Kosovo. This interim period was the principal, although not the only focus of the
1
6
7CR 2000/32, p.50, paras.17-18.
CR 2009/32, p.51, para.19. The absence of a rulc of internlawprohibiting a particular act by
no means entails that States must recognize that act or any legal consequences of it. Recognition is the
principal institution through which States address the consequences of declarations of independence, or
ofany other attempt at the creation of a new State. States have exercised grwithrespect to
secessionist acts within the territory of other StWhcre no State, or very few States, have
recognized the putative Srate as sucwillbe dc-terminative. The caution of States with respect to
such acts reflects their concem to preserve international sBut the question before the Court
deliberately avoids dealing withsuc-s of recognition or other lcgal consequences, as the United
Kingdom has noted: CR 2009/32, pp.46-48, pnras.1-8.
8CR 2009/24, p.67, para.11 (Shaw, Serbia).
9In this respect, the 2007 Declaration follows the 1970 Fricndly Relations Declaration.
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Rambouillet accords. lt is in this context that full account was to be taken of the
accords. 10 Paragraph l l(a) also required that full account was to be taken of annex 2
to resolution 1244 (1999), ie, the peace plan presented by Martti Ahtisaari,
representing the European Union, and Viktor Chernomyrdin, Special Representative
ofthe Russian FederationPlan. 11 This peace plan was also focused exdusively on the
12
interim period. Paragraph 8 of annex 2 required inter alia, for purposes of this
interim phase, that full account was taken of "the princ.iples of sovereignty and
territorial integrity of the Federal Republic of Yugoslavia".
9. In contrast to paragraph l l(a), paragraph 1l(e) of resolution 1244 (1999)
explicitly used different language when addressing the subsequent (post-interim)
phase, described as the "political process designed to determine Kosovo's future
status". Significantly, paragraph ll(e) makes no reference to annex 2 (including its
language of territorial integrity of the Federal Republic of Yugoslavia. 13 The
reference here was to the Rambouillet accords alone and, by necessary implication,
given the context, to Chapter 8, Article 1(3) thereof which rcferred to "the will of the
people''. This, indeed, is how the Special Representative of the Secretary-General
(SRSG) 1pears to have understood the paragraph 11(e) reference to the Rambouillet
accords. 1
1O. On 24 October 2005, the Security Council approved the commencement of the
political process provided for in paragraph l l(e) designed to determine Kosovo's
15
future status.
10
Pursuant to paragraph l l(a), the first of the "the main responsibilitfos of the international civil·
presence" of the international civil presence was to promote "the establishment, pending a final
settlement,of substantialautonomyand sélf-govemmentin Kosovo,taking full account of annex2 and
of theRambouilletaccords(S/1999/648)".
1S/1999/649,7 June 1999.
12See, in particular, Annex 2, paragraph 5: "[e]stablishmentof an interim administration forKosovo";
andparagraph 8:"establishmentof an interimpoliticalframeworkagreement"(emphasis added).
1·'r Bethlehem,CR 2009/32, p.44, para.25. See also at para.27: ''Mypurposes in making this point
are three: first, to cmphasizc chatresolution 1244 (1999) contemplated two processes, an interim
process and a political process designed to de-termineKosovo's future, and that theseprocesses were
addressed diffcrently in theesolution; second, to highlight that, in line with the appredation that
everythingwas open for discus!lion,the territorial integrityof the Fedcral Republic ofYugoslavia was
quiteexplicitly not a comerstone of the political process; and, thi'rd,to emphasize that the resolution
didnot dowhat itcould have done,hadthis bcen inthe minds of themembersof the Council. ltneither
p,recludedKosovo's independencenorrequiredSerbia'sconsentta such a development."
4In the Preamble to the 2001 ConstitutionalFramework for Provisional Self-Govemm1:mtt,he SRSG
determinedas follows: "... within the limits defined by UNSCR 1244(1999),responsibilities will be
transtèrredto Provisional Institutions of Self-Governmcntwhich shall work constructively towards
ensuring conditions for a peaceful and normal life for ail inhabitants of Kosovo, with a vito
facilitatingthe determination of Ko.sovo'sfuturestatusthrough a processat an appropriate future stage
which shall,in accordance with UNSCR 1 ?A4(1999).take full account of ail relevant factors including
thewillof the people" (emphasisadded).
15Meeting of the Security Council of 24 Octobe2005, UN Doc. SIPV 5290: "The Security Council
agrees with Ambassador Eide's overall assessment that, norwithstanding the challenges still facing
Kosovoand the widerregion, the time has cornetoove to the ncxt phaseof the political process.The
Counciltherefore supportsthe UnitedNations Sccretary-General's intention tostart a political process
to determine Kosovo's future status, as foreseen in Security Council resolutionl244 (1999). The
Councilreaffinns the framework of the resolution,and welcomesthe Secretary-General's readinessto
appointa SpecialEnvoyto leadthefuturestatusprocess."
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11. Against this background,the purposeofthe ren.vito the Rambouilletaccords
in paragraph 1l(a) of resolution 1244 (1999) was to provide for an appropriate
framework of "substantial autonomy and self-governmenf'. This appreciation is
consistentwith the reference to annex 2 in this paragraph. In contrast,the renvoito
theRambouilletaccords in paragraph l l(e) of thresolutionis a referenceto Chapter
8 Article·I(3)of the accords, whichprovidedthat a mechanism shouldbe determined
"for a final settlementfor Kosovo,on the basis of the will of the people, opinionsof
relevant authorities, each Party's efforts regarding the implernentation of this
Agreement, and the Helsinki Final Act". This appreciation is consistent with the
absenceof anyreferenceto annex2 inparagraph11(e).
12. Inthe United Kingdorn's view,resolution1244(1999)did not addressgeneral
issues of self-determinationor secession. It was a highly specific resolution which
addressed the unique circumstances of Kosovo. lt did not, accordingly, address
generalissuesof eligibilityforstatehoodorthe factualpreconditionsof a "people". It
followsthat the United Kingdomdid not enterinto detail on the issues of entitlement
to statehoodin its pleadings,whetherwithintheframeworkof the legal régimesetup
by resolution 1244(1999) or as a matterof generalinternationallaw. It nonetheless
notesthe recognition of the existenceof a Kosovan 'people'in the SRSG'sPreamble
to the 2001 ConstitutionalFramework,and alsoin the statementof the ContactGroup
16
Ministersof27 September2007.
16
Lener dated 10 Decernber 2007 from the Secretary-General addre10tthe President of the
Securicy Council, UN Doc. S/2007/723, Annex lII: Statement on Kosovo by Contaèt Group Minisrers,
New York, 27 September 2007. This underlined that "any settlement nceds to be acceptable to the
people of Kosovo, ensure standards implementation with regard to Kosovo's multi-ethnic character and
promote the furure stability of the region". [Dossier No. 209]
4
TOTAL P.06
Reply of the United Kingdom to questions posed by Judges Koroma and Cançado Trindade at the close of the oral proceedings