International Law and Kosovo’s Independence: Assessing Resolution 1244

by Chris Borgen

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.

http://opiniojuris.org/2008/02/19/international-law-and-kosovo%e2%80%99s-independence-assessing-resolution-1244/

6 Responses

  1. As far as I know, the Council of the EU Conclusions on Kosovo only “notes that Member States will decide, in accordance with national practice and international law, on their relations with Kosovo”. I guess that the BBC report quoted in the post may refer to a legal opinion of 17 December 2007 supported by some members of the EU; however, I have not been able to see that document. In any case, the above mentioned conclusions show that there is no EU position on the recognition of Kosovo, partly because some Member States believe that the unilateral declaration of independence is not in conformity with Resolution 1244 (1999).

    May I add a question for opinio juris: is it possible for Russia (and China) to block indefinitely the admission of Kosovo to the UN based on Article 4 of the UN Charter?

    Best regards,

    Carlos Espósito

  2. Chris,

    Your analysis is comprehensive, but you missed the article 53 of http://www.un.org/aboutun/charter/


    Article 53

    1. The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state.

    2. The term enemy state as used in paragraph 1 of this Article applies to any state which during the Second World War has been an enemy of any signatory of the present Charter.

    Consequently, EU is in violation of UN Charter, since EULEX does have no permission of Security Council.

    Moreover, the fact that casus belli – Racak “incident” – against Yugoslavia was proved hoax, before the very same court UN established for Yugoslavia is missing too. I won’t mention that the hoax was conspired by intelligence operatives covert operations as OSCE observers – there is no such a judgment, only witness about that.

    Furthermore, since the embryo super state EU still doesn’t have legal capacity, since it is just a regional organization at the moment, your analysis remains short of assessment of the aggression of NATO states against Yugoslavia. In this particular case these are USA, UK, France, Germany and Turkey that both violated UN Charter back in 1999 by attacking Yugoslavia, and now recognize secession of part of the territory of its legal successor. Not only UN Charter applies here, but Helsinki document of OSCE.

    Consequently, further analysis of “secession” and “recognition” is off mark, since the first act – the aggression – as the base of events is not included in the analysis.

    Finally, the only similar example that comes to mind is Mandzuko (sp?) having been created by Japan in China.

    Regards,

    Branislav

    ^^^^^^^^^^^^^^^^^^^^^^^^^^^^

    Carlos,

    Yes, any permanent UN SC member does have the power to prevent UN membership for Kosovo eternally.

  3. Branislav:

    Thanks for your comments. Here are a couple of quick responses:

    First, I did not apply article 53 as I do not think it is relevant here. I think it is a stretch to call EULEX and “enforcement action” under the UN Charter; it is legal and police training assistance. But, more importantly, it is assistance that is being given to– in the EU’s view– a newly sovereign state, Kosovo. Your analysis assumes that Kosovo is not independent.

    If your response would be that EULEX was drawn up prior to to Kosovo’s actual declaration of independence, you would be correct. But implementation will take place after the declaration, in the allegedly newly sovereign Kosovo. So, in the EU’s eyes at least, this is not a article 53 problem.

    I discuss the NATO point in my following post and explain there why, even if one believes the NATO bombing was illegal, that is not legally dispositive here.

    Best regards,

    Chris

  4. Chris,

    Thanks for your response.


    But, more importantly, it is assistance that is being given to– in the EU’s view– a newly sovereign state, Kosovo.

    That would be a handy reasoning, yet, to the chagrin of EU, or anyone else reckoning on it, it is fundamentally flawed for several reasons.

    Even if at least majority of EU members recognized Kosovo as a state before dispatching EULEX there (they didn’t and there are proofs about that, but it’s pointless to make such an argument here), thus deeming article 53 non applicable, Kosovo is, after proclamation of independence, a contested territory.

    EU, as a regional organization only, and only embryo super-state, is not vested any competence with regard to peace and security, unlike UN.

    Serbia is a recognized state and a UN member, and considers Kosovo as part of its territory where KFOR and UNMIK are excercising certain powers in accordance with UNSC 1244, which is based on Chapter VII of UN Charter.

    Since UNSC resolution 1244 has still not been revoked, thus still being in force, EULEX is meddling into the conflict that is handled by UN as a threat to stability, without the authorization of UN SC and without the consent of one of the parties in conflict – in this case a recognized state, a UN member, the sovereignty and territorial integrity of which is guaranteed by UN Charter.

    Regardless one deems Kosovo as a state or not, Kosovo still isn’t UN member and is not protected by UN Charter as a member state.

    Having considered the above, it’s clearly irrelevant whether EU considers Kosovo as a state or not. EU is neither in charge of recognizing states, nor in charge of maintaining peace and security. It can’t even be a party before ICJ.

    Thus, EULEX has been sent in violation of the article 53 not because Kosovo is not a state, but because Serbia, as a UN member state, considers Kosovo as part of its territory, while EULEX has not been authorized by UNSC.

    In a hypothetic situation where Serbia, refusing to recognize Kosovo, authorizes another state with nuclear missiles to hit nuclear missiles in Kosovo as part of its territory, KFOR, UNMIK and civilians would be protected by Geneva Conventions, while such an attack would have to be considered as an attack against UN personell.

    But what status, in such a hypothetic situation, would EULEX members have? My answer is status of bandits, not protected by Geneva Convention, at least as long as UN exist as such.

    Yet another question would be the applicability of various nuclear handling treaties to such a case.

    I guess we’ll hardly consider the above as something else but speculation, as long as Belgrade Quislings are in charge.

    Regards,

    Branislav

  5. Branislav:

    Yes, I see that the EU wanted to approve the program before Kosovo declared independence. I note in particular this report. However, please note that the EU states wanted to establish EULEX prior to a declaration of independence because they did not want EULEX to be viewed as de facto recognition of Kosovo. (This is different from either of our original characterizations of what happened.)

    To the contrary, the EU member states consider EULEX as within the mandate of Res. 1244. And, moreover, Sec Gen Ban Ki Moon has referred approvingly to EULEX.

    Notwithstanding this, I still maintain that if the member states of the EU now view Kosovo as a sovereign state, they may go ahead and assist it without having to wait fo the UN. This does assume that the recognition itself was not a violation of international law. You imply that it is the responsibility of the UN to recognize states; it is not. It is up to each sovereign state. The EU did not recognive Kosovo; most of the member states of the EU did.

    Yes, Kosovo is contested but that does not make EULEX (or the recognition by EU member states) illegal as EULEX may possibly be justified either under Res 1244 or as proper assistance to a new state (even if the preexisting state does not itself recognize the new state).

  6. Chris,


    You imply that it is the responsibility of the UN to recognize states; it is not.

    I’ve never done that.

    These are basics, so please don’t “put the words in my mouth” that I never pronounced.


    Notwithstanding this, I still maintain that if the member states of the EU now view Kosovo as a sovereign state, they may go ahead and assist it without having to wait fo the UN.

    They can, but they may not.

    UN SC Res. 1244 and article 53 of UN Charter make it illegal.


    And, moreover, Sec Gen Ban Ki Moon has referred approvingly to EULEX.

    Irrelevant. Article 53, UN Charter explicitly placed it as a competence of UN SC, not a SG.

    Regards,

    Branislav

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