In a front-page story in Koha Ditore, Kosovo legal experts say that the declaration of Kosovo’s independence could be done even with UNSC Resolution 1244 still in place. According to former communist leader and analyst Azem Vllasi, 1244 “does not consider the sovereignty of the Socialist Republic of Yugoslavia as something constant and untouchable, and as such it does not constitute an obstacle for the declaration of Kosovo’s independence.”
Ilir Dugolli, expert on constitutional matters, said that “if the UN Security Council does not pave way to the declaration of Kosovo’s independence through a new resolution, then 1244 will remain in force until a new decision is made.”
He went on to say, “Practically, the declaration of independence by most countries in the last decade was done without a green light from the UN Security Council. This happened in the case of countries that emerged from the former Yugoslaviaand those from the former Soviet Union.” According to him, in the current circumstances, Serbiacould pose an obstacle for extending the mandate of the OSCE in Kosovo.
There is, though, some sticky language in Resolution 1244 that doesn’t make it so clear cut as the Kosovo legal experts claim. For instance, here’s some language in 1244:
a) “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”;
b) “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”;
c) “A political process towards the establishment of an interim political framework agreement providing for 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 UCK. Negotiations between the parties for a settlement should not delay or disrupt the establishment of democratic self-governing institutions.”
None of the language in 1244 suggests that Kosovo can “legally” declare independence absent a new resolution. Of course, what happens when, for one reason or the other, a country blocks a security council resolution? You have unilateral independence without a resolution. There are two separate issues. One does not prevent the other from happening.