19 Feb International Law and Kosovo’s Independence: Assessing Resolution 1244
As the initial euphoria or anger (depending on your point of view) over the declaration of independence by Kosovo begins to subside, commentators are increasingly turning to the legal question: does international law support or impede Kosovo’s bid for independence? Too many times a quick and simple answer is given (International law denies Kosovo’s independence! Kosovo has a right to be free under international law!). This post and the one following it will tease out some of the threads of the fairly complex legal issues involved. A subsequent post will deal with the question of Kosovo’s status under the Ahtisaari Plan.
There are actually two distinct issues which at times are conflated (1) whether internatonal law supports (or at least does not deny) a claim of secession and (2) whether a separatist entity should be recognized as a state. In order to assess Kosovo’s status as a matter of interntaional law, one must consider each of these questions. But, first though, we must look at Security Council Resolution 1244 (1999) and ask if it affects Kosovo’s bid for independence.
Some of the key language includes the following from the preamble:
Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and annex 2,
Reaffirming the call in previous resolutions for substantial autonomy and meaningful self-administration for Kosovo,
Moreover, the operative paragraphs include the following:
The Security Council…
1. Decides that a political solution to the Kosovo crisis shall be based on the general principles in annex 1 and as further elaborated in the principles and other required elements in annex 2; …
10. Authorizes the Secretary-General, with the assistance of relevant international organizations, to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo;
11. Decides that the main responsibilities of the international civil presence will include:
a. Promoting the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo, taking full account of annex 2 and of the Rambouillet accords (S/1999/648);…
e. Facilitating a political process designed to determine Kosovo’s future status, taking into account the Rambouillet accords (S/1999/648);
f. In a final stage, overseeing the transfer of authority from Kosovo’s provisional institutions to institutions established under a political settlement;
The annexes including further language such as the following from annex 1, listing general principles for a political solution:
A political process towards the establishment of an interim political framework agreement providing for a substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region, and the demilitarization of the KLA;
Annex 2 states, in part:
Agreement should be reached on the following principles to move towards a resolution of the Kosovo crisis:
5. Establishment of an interim administration for Kosovo as a part of the international civil presence under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, to be decided by the Security Council of the United Nations. The interim administration to provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants in Kosovo.
According to the BBC, the EU has taken the position that
independence for Kosovo is within the spirit of 1244, if not strictly within the letter.
The 1244 resolution also envisaged a final status process and did not constrain or pre-determine its outcome.
“Acting to implement the final status outcome in such a situation is more compatible with the intentions of 1244 than continuing to work to block any outcome in a situation where everyone agrees that the status quo is unsustainable,” [the EU memorandum] says.
The document adds that this approach “will enable, rather than frustrate, the conclusion of the final status process envisaged in resolution 1244”.
I think the EU position holds water. As usual, it is all in the drafting. Paragraph 1 references that a political solution shall be based on the principles of annexes 1 and 2. But those annexes are silent as to the governmental form of the final status, they only say that the “interim political framework” should afford substantial self-governance for Kosovo and take into account the territorial integrity of Federal Republic of Yugoslavia. Note also the wording of operative paragraph 11(a), that states that the international civil presence will “Promot[e] the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo…” Once again the substantial autonomy language is in regards to the interim status of Kosovo. The document is silent as to its final status.
Serbia and Russia understandably argue that it is implied that the final status should then be one of only autonomy (as opposed to sovereignty) but that is not within the letter of the Resolution. It is simply another interpretation of what the language of the resolution implies.
In sum, 1244 is one of those political documents that give both parties wiggle-room for how they want to read it.
Moreover, 1244 may have been overtaken by events as the U.S., the EU, and Russia (the “troika’) jointly reported to the UN in December 2007 that political negotiations between Serbs and Kosovar Albanians had failed.
If Res. 1244 is not dispositive, then we would need to turn to the international legal principles related to secession and recognition. I will consider those issues in my next post.