There has been quite a bit of talk about the legal ramifications of an impending unilateral declaration of independence by Kosovo. To the EU and the U.S., a unilateral declaration of independence does not violate international law. To Serbia and Russia, a unilateral declaration of independence does violate international law.
So what’s the deal? Whose right? Whose wrong? The best place to start is what “international law” the parties are referring to, and here, it is United Nations Security Council Resolution 1244. Unlike the Helsinki Final Act of 1975, UN SCR 1244 is only about eight pages long. Yet, in these eight or so pages, legal lines have been drawn in the sand.
I did a basic Google search to find an analysis of whether or not UN SCR 1244 provides a legal basis for Kosovo independence. From the limited information I did find, these were the arguments boiled down to a sentence:
For Serbia and Russia: Because UN SCR 1244 refers to the “territorial integrity” of Yugoslavia, Kosovo cannot declare independence without a new security council resolution.
For the EU and the US: Because UN SCR’s reference to “territorial integrity” is mentioned in the preamble and is thus not legally binding, and because nothing else in UN SCR 1244 says Kosovo can’t declare independence, Kosovo can declare independence without a new security council resolution.
I figured I would do my own analysis. You can find UN SCR 1244 here. Adopted on June 10, 1999, UN SCR 1244 (along with the accompanying Kumanovo Treaty) authorized the UN and NATO presence in Kosovo.
The basic provisions of the preamble are as follows:
a) The primary responsibility of the Security Council is to maintain “peace and security”;
b) Observing that Belgrade has not fully complied with prior Security Council resolutions;
c) Condemning all acts of violence against the Kosovo population, including terrorist attacks;
d) Reaffirming the “right” of refugees and displaced persons to return to their homes in safety;
e) Reaffirming the “commitment” to the “sovereignty and territorial integrity” of the Federal Republic of Yugoslavia as set forth by the Helsinki Final Act;
f) Reaffirming the call for “substantial autonomy” and “meaningful self-administration” for Kosovo.
The basic provisions of the “determinations” by the UN SC:
a) Belgrade must immediately put an end to violence and repression in Kosovo, which includes withdrawal from Kosovo of all military, police, and paramilitary. Only an “agreed number” of Serbian military and police personnel will be permitted to return.
b) International civil and security presence will be deployed in Kosovo, and “welcomes the agreement” of Belgrade;
c) A Special Representative of the Secretary General will “control the implementation of the international civil presence,” and this civil presence will provide an interim administration under which the people of Kosovo “can enjoy substantial autonomy” within FRY, and which will provide a “transitional administration” that “establish[es] and oversee[s]” the “development of provisional democratic self-governing institutions” pending a “final settlement”;
d) Said interim administration shall be based on the “general principles” in annex 1, which, in relevant part, states that a political process towards the establishment of an interim administration must take into account the principles of sovereignty and territorial integrity of FRY;
e) Facilitating a political process designed to “determine Kosovo’s future status”;
f) Assuring safe return of all refugees and displaced persons to Kosovo;
g) Demands that armed Kosovo Albanian groups end all offensive actions;
The Analysis (Or: What does the reference to “sovereignty and territorial integrity” mean?):
When you look closely at the legal arguments by both sides, what you are really seeing is merely two different approaches to legal interpretation. The Serbs and the Russians take the view that you should read outside the four corners of the document in arriving at the conclusion that independence would violate UN SCR 1244. The EU and the US take the view that you can only read within the four corners of the document in arriving at the conclusion that independence would not violate UN SCR 1244.
Let’s start with the “territorial integrity” argument. The language of “territorial integrity” is located in two places: the preamble and the binding determinations (through Annex 1). A preamble is like dicta in a court case: it is not binding. However, it does not mean that preambles — like dicta — are irrelevant. Preambles often shed light on the intent of the drafters and can also provide a useful tool for defining clauses in legally binding language that are vague.
In the context of 1244, the preamble simply says that the UN SC is “reaffirming the commitment” to the “sovereignty and territorial integrity” of FRY. Does it mean this term in the context of the future status of Kosovo? Or does it use this term in the context of the then-impending international “interim administration”?
If you were to read just the term of “sovereignty and territorial integrity” of FRY in the vacuum of the preamble, it would be certainly difficult to determine what the drafters meant by this language. The Serbians and Russians take hold of this clause in the preamble to argue that the drafters certainly meant that Kosovo could not declare independence absent a security council resolution because that would violate the “sovereignty and territorial integrity” of FRY.
But the Serbian and Russian view is an extremely narrow one and doesn’t take into account both the language and thrust of 1244 (even using their outside the “four corners” legal interpretation). When you read the legally binding determination clauses as outlined in Annex 1, the “sovereignty and territorial integrity” clause is clearly referring to a UN administered interim administration, not as binding language that would prevent Kosovo independence.
And why was there such a concern about an international civil administration presence? Because the UN would be running Kosovo like a government would.
Thus, the Serbian and Russian preamble argument fails on two grounds: a) language in a preamble is not binding and b) the language in the binding clause that refers to “sovereignty and territorial integrity” refers to the international interim civil administration.
The next argument is whether or not UN SCR 1244 requires a new security council resolution for Kosovo to legally declare independence. Of course, while a security council resolution would be beneficial, it is certainly not required. For one, as noted, the preamble arguments do not prevent Kosovo declaring independence. The sovereignty and territorial integrity referred to in the binding language dealt with the limitations on the international civil administration. For the other, the language within UN SCR 1244 laid the preliminary groundwork for possible independence without the requirement of a UN SCR.
Language in the binding clauses of UN SCR 1244 states that the international civil presence will promote the establishment of “substantial autonomy” and “self-government” in Kosovo pending a final settlement. It is clear from the language of SCR 1244 that the intent of the drafters was a distinct recognition that Kosovo would have “substantial autonomy” and institutions of “self government” separate and apart from Belgrade.
Nonetheless, the Serbians and Russians have taken the language of “final settlement” to mean that a new security council resolution is required for Kosovo independence. Unfortunately, nothing in the UN SCR 1244 states that a “final settlement” can only be determined by the security council. The definition of “final settlement” has been — for one reason or the other — left open by the drafters. If anything, the only thing that UN SCR 1244 defines as to Kosovo’s “future status” is that the international civil administration must “facilitate” that political process.
In that regard, the “final settlement” language does not have the weight that the Serbians and Russians so desperately want it to have. “Final settlement” is thus defined outside of UN SCR 1244 — specifically, the international community will determine how and under what form that “final settlement” should take. And that is exactly what has happened to the letter.
The troika attempted to broker a “final settlement.” They could not. The UN SCR will attempt to broker a “final settlement.” It is clear they won’t. What does that mean? That the “final settlement” will be determined in another way: unilateral declaration of independence, with the core of the EU and the US recognizing it.
Serbia, of course, does not have to recognize Kosovo’s independence. Nor does Russia. But in conjunction with UN SCR 1244, the Kumanovo Treaty, and the Rambouillet accords, Serbia’s “Kosovo” was in a legal “no-mans” land, in that Kosovo belonged to Serbia in name only until a “final settlement” was reached as to Kosovo’s future status. These three events — 1244, Kumanovo, and Rambouillet — provide the path for Kosovo’s independence, even without the approval of Belgrade or Russia or Cyprus.
The basic conclusion is this: the international community is not “stealing” or “trampling” on Serbia’s borders by recognizing and supporting Kosovo independence. Despite its billboards using quotes from American presidents, Serbia lost the inalienable right to call Kosovo theirs via UN SCR 1244, the Kumanovo Treaty, and the Rambouillet accords.
So wake up and smell the slivovitz, Serbia. The core of the international community has spoken on Kosovo’s “final settlement.”
Kosovo will be Kosovo’s.