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

Comments of the Bolivarian Republic of Venezuela to the questions

submitted by Judges Koroma and Cançado Trindade on December 11,

2009 with respect to the request of an advisory opinion on the

"Accordance with International Law of the Unilateral Declaration of

lndependence by the Provisional Institutions of Self-Government of

Kosovo"

At the end of the public hearing held on December 11, 2009, to meet the
request of an advisory opinion submitted by the General Assembly of the United

Nations to the International Court of Justice on the question of the "Accordance

with International Law of the Unilateral Declaratioh of lndependence by the

Provisional Institutions of Self-Government of Kosovo", Judges Koroma,

Bennouna and Cançado Trindade conveyed three questions to the participants

of the oral proceedings who may wish to respond.

Through this document, the Bolivarian Republic of Venezuela shall state
its position with respect to two of the three questions in the following terms:

1. The first question was posed by Judge Koroma in the following terms:

"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 Statewithoutthe latter's consent?"

With respect to the first question, the Bolivarian Republic of Venezuela

considers secession as one of the possible consequences -but not the only

one- of the exercise of the right to self-determination of peoples. ln this sense,

for the Government of the Bolivarian Republic of Venezuela, international law

does not recognize other causes that might motivate the secession of a territory

from a sovereign State different from those provided for the case of "externat

self-determination", which were sufficiently explained by the Supreme Court ofCanada in its judgment of the year 1999 on the question of the Secession of

Quebec.

Such decision, apart from recognizing the rights of the peoples bound to

colonialism, extends such possibility, in accordance to resolution 2625 (XXV) of

the General Assembly of the United Nations, dated October 24, 1970, only to

those people that are bound to foreign subjugation, domination or foreign
exploitation off the colonial context, since such imperialistic behaviors constitute

a flagrant violation of the principles of equality of rights and self-determination of

the peoples.

Additionally, the aforementioned Supreme Court, based on resolution

2625 (XXV), recognized, basides the situation of the colonial context, a second

situation that might lead a people to legally favor the secession of a territory

from a sovereign State.

The aforementioned resolution 2625 (XXV) refers that: "Nothing in the

foregoing paragraph 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 right and self-determination of people 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".

Thus, when a people is clearly unable to exercise its internai self­

determination, that is, when it does not have the possibility to access in equal
circumstances and without any discrimination to the exercise of the res pub/ica

within the State to which it belongs, in such a case, one may deem that that

people acquires the right to activate its external self-determination.

lt is only under those circumstances that the Bolivarian Republic of

Venezuela considers the possibility of secession of a territory from a sovereign

State to be in accordance with international law,. On the contrary, if we assumethat international law does not prohibit secession but it implicitly permit it,

means that such secession can only take place within the framework of the

principle of self-determination of peoples and full respect of the principle of
sovereignty and territorial integrity of the States, as stated and recognized both

in the Charter of the United Nations and the resolution 2625 (XXV) of the

GeneralAssembly of the United Nations.

2. The question submitted by Judge CançadoTrindade is the following:

"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 Accords. ln 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 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?"

With respect to the aforementionedquestion, the Bolivarian Republic

of Venezuela considers that while paragraph 11 (a) of resolution 1244

(1999) establishes as one of the main responsibilities of the international
civil presencethe promotion of the establishmentof "substantial autonomy

and self-government in Kosovo, taking full account of annex 2 and of the

Ramboui/let accords", the reference to the Rambouillet accords in the

Resolution is aimed at providing the international civil presence the
appropriate legal framework for the compliance of its obligation of

establishing "substantial autonomy and self-government in Kosovo"; that

is, in order to define the legal regime regulating both the proceeding and

the basis and limits to develop the mandate of promoting the

establishmentof autonomy and self-government. ln this sense, the Bolivarian Republic of Venezuela wants to stress

the fact that, although the lnterim Agreement for Peace and Self­
Government in Kosovo never entered into force, several paragraphs and

articles in its text confirmed the principle of respect for sovereignty and

territorial integrity of the Federal Republicof Yugoslavia, as the basis upon

which the system of self-government of Kosovoshould be built.

ln this regard, it is necessary to highlight the statemente included in the

preamble of the aforementioned lnterim Agreement in which the Parties recall

"the commitment of the International community to the sovereignty and territorial
integrity of the Federal Republic of Yugoslavia". Likewise, Article 1.2of the

Agreement's Framework states: "National communities and their members sha/1

have additional rights specified in Chapter 1. Kosovo, Federal, and Republic

authorities sha/1not interfere with the exercise of these additional rights. The
national communities sha/1be Jega/lyequa/ as specified herein, and shall not

use their additional rights to endanger the rights of other national

communities or the rights of citizens, the sovereignty and territorial

integrity of the Federal Republic of Yugoslavia, or the functioning of
representative democratic government in Kosovo".

At the same time, it is worthy to recall that respect for the sovereignty and

territorial integrity of Yugoslavia is specifically expressed in the Rambouillet

Accords in relation with the respect for and contrai over the borders of the
Federal Republic of Yugoslavia. lndeed, Article Vl.1 of Chapter 2 states that

"the Government of the Federal Republic of Yugoslavia wi/1maintain official

border crossings on ifs international borders (Albania and the FYROM)", and

article 1.4of Chapter 4 sets forth that the Federal Republic of Yugoslaviasha/1
be responsible for the collection of ail customs duties at international borders in

Kosovo".

As a result of the previous arguments, the Bolivarian Republic of
Venezuela concludes that the renvoi made in paragraph 11(a) of resolution

1244 (1999) to the Rambouillet accords, does not constitute itself a connecting

element between them and the issues of self-determination or secession, butonly an orientation for the international civil presence on the legal regime
encompassing both the procedures and the basis and limits to comply the

mandate of promoting the establishment of "substantial autonomy and self­

government in Kosovo". Thus, such renvoi does not constitute a legal basis to

justify a process of secession or independence by the provisional institutions of
self-government of Kosovo.