Here’s the theory that the U.S. and the EU is operating under: Kosovo will declare independence in January. Then, pursuant to the Ahtisaari Plan of supervised independence, an EU mission will replace the UN Mission within 120 days. Well, at least that is the theory.
Apart from the Serbian and Russian platform that a unilateral declaration of independence would violate UN SCR 1244, there is the secondary argument that the existing UN SCR 1244 does not provide a legal framework for the EU mission. The EU’s response to this is simply to state that certain language that appears in UN SCR 1244 is in the preamble and thus is non-binding.
While it is true that language in a preamble is not binding, a preamble certainly expresses the intent of the parties. It certainly should not be flippantly dismissed as the EU and other bodies have done. After all, some of the most famous “preambles” are what people remember (We the People of the United States . . .)
Regardless, I can understand the “preamble” argument that EU diplomats put forth is one (strained or not) supporting a unilateral declaration of independence. But I do not see at all how that resolution establishes an EU mission to administrate Kosovo. After all, the most cited “preamble” argument in 1244 refers to this language in 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 . . . .”
The EU and the US use this “preamble” argument to put forth a hyper-technical argument of how UDI does not violate UN SCR 1244, apparently because the interest of preserving the “territorial integrity” of Yugoslavia is not binding, since that language was placed in a “preamble.” Of course, that is an argument for another day and one that I will not belabor now.
The one I will belabor is whether UN SCR 1244 provides a legal basis for an EU Mission. So, I looked closely at the resolution and, in particular, the parts that are binding. Here’s some language that’s a bit tricky to get around:
Paragraph 5: Decides on the deployment in Kosovo, under United Nations auspices, of international civil and security presences, with appropriate equipment and personnel as required, and welcomes the agreement of the Federal Republic of Yugoslavia to such presences;
Under Annex 1: Deployment in Kosovo of effective international civil and security presences, endorsed and adopted by the United Nations, capable of guaranteeing the achievement of the common objectives;
Establishment of an interim administration for Kosovo to be decided by the Security Council of the United Nations to ensure conditions for a peaceful and normal life for all inhabitants in Kosovo.
As we all know, the Security Council of the United Nations decided that the United Nations would become the interim administrative body. Nothing in the binding sections of the resolution provides much breathing room for another body to administer Kosovo other than UNMIK or absent a contrary decision by the Security Council.
The only arguable breathing room is that first section of the annex, which allows for the “deployment” of effective international presences endorsed and adopted by the UN. Some would say that leaves space for an EU mission if the UN endorses and adopts it. But there’s two main issues with that line of argument.
First, the second part of the annex which relates to the Security Council suggests that the “international presences” discussed above are those presences with less responsibility than the “supreme” administrative governing body: UNMIK. One of these, for example, would be OSCE. The second issue is what does it mean to be “endorsed” and “adopted” by the UN? Does that require a Security Council resolution? If so, why wasn’t it put in that paragraph, particularly when the next paragraph explicitly cites it? Further, which one controls, the first paragraph or the second? It seems to me that when you are talking about a “supreme” administrative governing body — which the EU mission is supposed to be . . . just like UNMIK — it is clearly the second paragraph that controls, which requires a Security Council resolution, not simply the “endorsement” of UNMIK.
There could be some debate over what it will mean to be an “interim administration,” particularly when there is a UDI. However, again, nothing in the resolution provides a legal framework for the EU mission to become the “interim administration,” nor does it provide UNMIK with a legal basis to “invite” an EU mission to replace it.
When compared with the independence argument in light of UN SCR 1244, I do not believe, under 1244, that the EU mission stands on solid legal footing.