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UN SCR 1244: Does it provide a basis for Kosovo independence? The answer: Yes.

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 vihttp://img.timeinc.net/time/daily/special/kosovo/maps/kosovomap.gifolate 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.  

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About Mr. Cheeseburger 9000

I am Mr. Cheeseburger 9000. I like my burgers medium-rare with a side order of french fries.

13 responses to “UN SCR 1244: Does it provide a basis for Kosovo independence? The answer: Yes.

  1. Agrippa ⋅

    If UNSC Res. 1244 does *not* guarantee the territorial integrity of FRY (Serbia) — as you argue — then why is it that Serbia insist it be respected, valid and in force until a new SC Res. is adopted? Likewise, if it *does* create conditions for Kosovo-Metohia to be taken away from Serbia “legally” — why is the West constantly trying to circumvent the UN/UNSC and so blatantly disregards international law, treaties guaranteeing territorial integrity of states (i.e. Helsinki), etc?

    And how can an entity (UNMIK) that has no territory and/or population possess sovereignty and territorial integrity?

    “Separate from Belgrade”? That is open to interpretation. For example, every municipality in Serbia has a degree of autonomy from the central government — they are, in a way, separate from Belgrade since they’ve got their own self-government, budget, by-laws, police, etc, etc.

    The “core of international community” (whatever “international community” is) would have already declared “Kosova” independent if they had a leg to stand on. This is the law of force, not the force of law, my friend.

  2. Dear Agrippa,

    Thanks for your comment. I respect your views even though I disagree with them.

    As to your first three paragraphs, I rely on my analysis. You raise valid questions, some of which I don’t have an answer to, such as, “Why is that Serbia insist it be respected . . until a new SC Res. is adopted.” Part of that is that Serbia is still living in the past.

    You say that UNMIK does not have sovereignty or territorial integrity. You’re right. It does not. It does, under 1244 and the Kumonovo Treaty, have the supreme and full power to adminstrate Kosovo. That was the agreement. Part of the language of “territorial integrity” etc was to make that fact clear regarding UNMIK’s presence . . .

    As for the last paragraph, the core of the international community waited to support Kosovo independence until the final status process was completed. It will be completed very very soon. As argued, it would have been great if the UN SC could have passed a resolution. It did not, but that very fact does not prevent Kosovo independence. As you know, Russia and Serbia have taken a different view.

    Come end of January or beginning of February, Kosovo will declare independence and the core of the international community will follow. The rule of law is being followed per 1244 and the Kumonovo treaty, after Serbia was forced to surrender back in 98 — 99. I just wish the leaders and the press would provide more of an analysis of why or why not 1244 provides a basis for Kosovo independence. Much of it is truncated quotes that simply say, “1244 does not prevent Kosovo independence.”

    That doesn’t help for intelligent discourse. And when snippets of quotes are taken, such as the EU’s position that the preamble does not apply, it weakens their legal argument and makes it appear to be a legal technicality for independence as opposed to a more substantive argument.

    Anyway, thanks for your comments my friend. I hope that we and others can have discourse about 1244. There isn’t much out there.

    Sincerely,
    Mr. Cheeseburger 9000

  3. USG ⋅

    MR. Cheese… You are Albanian, aren’t you?

  4. Dear “USG,”

    Thanks for your comment. I am not Albanian, though.

    Sincerely,
    Mr. Cheeseburger 9000

  5. Zoran ⋅

    Mr. Cheeseburger

    There are majoriy of World and European people who are for teritorial integrity of Serbia ,member of UN.

    I would like to show to you that UN Security Council member countries which oppose Kosovo Independence
    Represent 1800 million people (China, Russia, Indonesia, Vietnam, SAR) .There are majority of international community.

    UN Security Council member counties which are for Kosovo independence represent only 500 million people.
    (USA, UK, France, Italy, Belgium, Panama)

    European parliament (Council of Europe) vote on 23.1.2008, 48:24 against independence.

    World and Europe are against Kosovo independence.
    It is ambition of NATO former Colonial powers willing to establish new colony at Kosovo with new Vice Royal.
    They are nostalgic for time of protectorate and colonial governors.

    But world is against it and majority of Security Council.

    Kumanovo Peace Treaty and Resolution 1244 are very strict: Kosovo is part of Yugoslavia and Serbia.
    Under this condition Yugoslav and Serbian Army agreed to windrow without NATO invasion.
    There were guaranties of G 8 and Russia of this peace Treaty.
    This is not CAPITULATION, it is peace treaty with right for both side.

    NATO tried twice unsuccessfully to invade Kosovo.
    In order to save NATO people NATO countries agreed with less than Kosovo independence.
    You can see how costly Iraq invasion was. (Thousand of killed USA troops).
    NATO made compromise with help and guaranties of Russian mediator Chernomyrdin, in order to avoid NATO loses and dangerous and deadly invasion.

    But it is dishonest now, push for Kosovo independence against Russia, Serbia, China will and against Resolution 1244 and Kumanovo.

    IF NATO countries persist in this direction it will kill any future compromise peace deal for another world conflict. Both sides will go to final victory.

  6. Jakov Rabinovich ⋅

    UN SCR 1244 was never meant to either grant independence or deny sovereignty to any parties mentioned therein so why ask the question? There is a mention of “a final settlement” (11.a) but in what shape that settlement is to take form is a question left entirely up to the parties. It is not a far fetch to assume that the drafters hoped KLA would settle a broad autonomy within the territory of Serbska Republic; no one in 1999 assumed that Albanian elites in Kosovo would adopt the Palestinian “permanent victimhood” model of a foreign aid based economy and embrace the spirit of free trade by establishing Kosovo as a narco-gateway to Europe.

    The argument is not whether declaration of independence is illegal under SCR 1244 (or under any other treaty or mandate of international law for that matter) but whether the stationing of UN peacekeepers with a substantial NATO presence on the territory of FRY to oversee a secession of a part of FRY is legal. Combine that with instant recognition of a sovereign Kosovo by the very powers stationing those troops – and you have a blatant violation of the purpose, spirit, and nature of SRC 1244.

  7. Dear Mr. Rabinovich,

    As to your first sentence, UN SCR 1244 is the operable body of law. Thus, any question of either independence or sovereignty would have to deal with the provisions under the resolution. As to your second sentence, you are absolutely correct. . . the parties, at least most of them, did eventually decide on the framework for the future status: negotiation, security council, unilateral declaration. As to your third sentence, Kosovo does have its share of problems . . . in some ways problems inherent to “third states.” Let’s see how Kosovo makes it way into the next phase.

    As for your second paragraph, you bring up a very interesting issue as to NATO presence. It’s an additional question to the issue of whether SCR 1244 affords a gateway to independence. In the end, though, the issue of having NATO there does not violate SRC 1244, but rather calls into question the independent scope and reason for NATO’s presence. But when you look closer at it, it really is a distinction without a difference. The argument holds true for the UN or the EU as well.

    Sincerely,
    Mr. Cheeseburger 9000

  8. Sasa ⋅

    Do you believe that the separation of Kosovo from Serbia will trigger other separatist movements to do the same? And if so, what outcome can we look forward to regarding the security of the entire world?

  9. Joel ⋅

    Dear Mr Cheeseburger,

    Unilateral action in international law does nobody a favour. It not only undermines the law itself but also the sovereignty and equality of states under the auspices of international law.

    Despite what you’ve written about 1244, Serbs and Russians would make the very same arguments, albeit outside the four corners of the document, but they pose the very same validity given that the declaration of independence has been made with no specific reference to any legal document.

    When the drafters of 1244 implied a “final settlement” but did not specify its nature, the assumption of independence did not actually give any legitimacy to the actual claim to independence that Kosovo has made.

    Furthermore, Kosovo has no authority, as province of a sovereign state, to declare independence, and this is an issue that has been completely ignored. The fact that it has an autonomous government (as do numerous provinces in any federal system) does not give it an authority to undermine the sovereignty of the state that has given it autonomy WITHIN its borders.

    Finally, an analysis of 1244 is simply not enough. The precedent set by Kosovo will have far-reaching implications. Without looking at other instruments of international law related to state sovereignty and secession (the Helsinki Accords, for example), and without a multilateral agreement being reached (which absolutely MUST include Serbia) Kosovo will remain a pariah within the international system…kinda like a twice convicted serial killer and rapist who is released and marries into a wealthy family. He’s there, but the family functions are strained and awkward.

  10. Boki ⋅

    Mr. Cheese,

    Maybe you should read up on the Helsinki Final Act, and why is the US and EU being so sneaky and gay about everything??? The fact is that there is no room for the independence of Kosovo in the Resolution and your analysis of this resolution is dumb, it clearly states in the begining that to reaffirm the soverignty and territorial integrity of the FRY, so basically it has no room for independence.

  11. Dear Boki,

    Thanks for the advice. I’ve read it.

    You should read the entirety of SCR 1244.

    Sincerely,
    Mr. Cheeseburger 9000

  12. gracchvs ⋅

    Dear Mr. Cheesy,
    I am not good in law, so I will leave to you, lawyers and “lawyers” to ping–pong with law. But, Der Mr. Cheesy, you have a wrong picture of Serb as a slivovitz-drinking beared cutthroats… Serbs give a huge contribution to western culture, science, sport… So, your convergence to Hashim Tachi’s unilateral independence proclamation is your choice. But, please, don’t treat us as a slivovitz drinkers. BTW, there are very decent people among ethnic Albanians, but, my friend, Tachi killed or organized the killing a great number of Serb authorities on the Kosovo before 1999. And, don’t forget that he organized a strong mafia clan dealing with drugs and white slaves selling business. So… They really need Serbia not to control their activities. I wonder if leaders from US and Uk and EU are involved? Read the new book of her highness, Carla del Ponte.. Salut!

  13. Dear Gracchvs,

    Thanks for visiting.

    First, I don’t think that Serbs are “slivovitz-drinking bear[ded] cutthroats.” I have used the term “slivovitz” as a sarcastic remark regarding Kostunica, such as “wake up and smell the slivovitz.” I have many Serb friends. It is a joke they have used, so I stole that for my blog.

    I want to make clear that I have nothing against Serbs. To be sure, as you can see from this blog, I am for the independence of Kosovo. But that does not mean I think Serbs are heathens, etc. I think the contrary.

    I’ve seen the allegations by Carla del Ponte. Interesting indeed. But as for now, that’s all they are: allegations. It has something that has plagued Carla del Ponte’s “administration.” It is interesting to see how sources such as Serbianna have taken allegations, from del Ponte’s to Thaci’s mafia dealings, as fact.

    Either way, thanks for visiting. I appreciate your comments, even though we disagree on certain points.

    Sincerely,
    Mr. Cheeseburger 9000

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