Written Statement Kosovo (UK)

I.

Secession is not as such contrary to international law

a. The claim is normally presented in declarations adopted by the leaders of
the seceding entity, i.e., by way of a unilateral declaration of
independence.1 Historically, secession has been an ofted-used method for

II.

the creation of new States. (page 92)

Secession before 1945
a. Aaland Islands Reports of 1920, the Committee said that: Positive
international law does not recognize the right of national groups, as such,
to separate from the State of which they form part by the simple
expression of a wish, any more than it recognizes the rights of other States
to claim such a separation. Generally speaking, the grant or the refusal of
such a right to a portion of its population of determining its own political
fate by plebiscite or by some other method, is, exclusively, an attribute of

III.

the sovereignty of every State which is definitely constituted.2(page 93)

The relevance of the United Nations Charter
a. Article 1(2) of the UN Charter provides that it is a purpose of the
Organization: (page 94)
To develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, and to take
other appropriate measures to strengthen universal peace.
b. Article 55 provides that:
With a view to the certain of conditions of stability and well-being which
are necessary for peaceful and friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples,
the United Nations shall promote:

1 As noted in Chapter 1 above, the phrase unilateral in these cases adds litttle.
Declarations of independence are by definition unilateral acts.
2 Report of the Committee of Jurists, LNOJ, Special Supplemen No. 3 (1920), pp.5-6.

i.

Higher standars of living, full employment, and conditions

ii.

of economic and social progress and development;

Solutions of international economic, social, health, and
related problems; and international cultural and educational

iii.

co-operation; and
Universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race,

sex, language, or religion.

c. The principle of self-determination, now be developed into a legal
principle, played an important role in this process, as the Court noted in
the Namibia Opinion :
In the domain to which the present proceedings relate, the last fifty years, as
indicated above, have brought important developments. These developments
leave little doubt that the ultimate objective of the sacred trust was the selfdetermination and independence of the people concerned.3 (page 95)
d. In Western Sahara, the Court defined the principle of self-determination in
terms of the need to pay regard to the freely expressed will of peoples.4
e. the right of people to self-determination, as it evolved from the Charter
IV.

and United Nations practice, has an erga omnes character.5

Remedial Self-Determination
a. General Assembly resolution 2625 (XXV), the Friendly Relations
Declaration, included in paragraph 7 of principle 5, the following
statement:
Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in

3 Legal Consequences for States of the Continued Presence of South Africa in

Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970), ICJ Rep 1971, p. 16, at p.31, para 53.
4 Western Sahara Advisory Opinion, ICJ Reop 1975, p.12, at p.33, para. 59

5 East Timor (Portugal v Australia), ICJ Rep 1995, p.90, p.102, para.29

part, the territorial integrity or political unity of sovereign and independent

States conducting themselves in compliance with the principle of equal
rights and self-determination of peoples 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. (Page 97)
b. This clause was reaffirmed in the Vienna Declaration of 1993, adopted
during the United Nations World Conference on Human Rights. The
Declaration establishes that:
In accordance with the Declaration on Principles of International Law
concerning Friendly Relations and Cooperation Among States in
accordance with the Charter of the United Nations, this shall not 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 rights and self-determination of
peoples and thus possessed of a Government representing the whole
people belonging to the territory without distinction of any kind.6
c. The Supreme Court of Canada in the Quebec Secession Reference, after
referring to these declarations, noted that:
A number of commentators have further asserted that the right to selfdetermination may ground a right to unilateral secession in a third
circumstance. Although this third circumstance has been described in several
ways, the underlying proposition is that, when a people is blocked from the
meaningful exercise of its right to self-determination internally, it is entitled,
as a last resort, to exercise it by secession While it remains unclear whether
this third proposition actually reflects an established international law
6 United Nations World Conference on Human Rights, Vienna Declaration and
Programme of Action, 25 June 1993, 31 ILM 1661 (1993), p.1665.

standard, it is unnecessary for present purposes to make that determination.

Even assuming that the third circumstance is sufficient to create a right to
unilateral secession under international law, the current Quebec context cannot
be said to approach such a threshold.7

7 Reference re Secession of Quebec, [1998] 2 S.C.R. 217, paras. 134-135