UN Resolution "Permits Kosovo’s Independence"
By Gjeraqina Tuhina in Brussels
December 17, 2007
Legal experts from some EU
member states say Resolution 1244 not only permits an EU mission in Kosovo,
but it opens the path to independence of the disputed territory.
A confidential document drawn up
by legal experts from governments of some EU member and obtained by Balkan
Insight argues that the wording of UN Resolution 1244 on Kosovo does not
preclude the independence of the territory or its recognition by other states.
The document comes after the
failure of the UN mediated talks. While Serbia and Russia are challenging the
legality of the European Union’s decision to establish a mission in Kosovo, the
document, aimed to persuade countries reluctant to recognise Kosovo`s
independence, has been circulated among EU member states in the past few weeks.
The paper notes that Resolution
1244 will remain in effect even after Kosovo becomes independent, and it
specifically concludes that “1244 does not prevent Kosovo’s independence.”
The Resolution refers to Kosovo
as an integral part of the Federal Republic of Yugoslavia (now Serbia), but the
legal experts conclude that this is a “non-binding reference to the ‘sovereignty
and territorial integrity of the FRY’.”
It is non-binding, the experts
say, because it is mentioned only in the preamble of the Resolution, and
“preamble references in Security Council Resolutions are not legally binding.”
In addition, the document notes
that “1244 also envisaged a final status process and did not constrain or
pre-determine its outcome.”
The experts point out that the
Resolution envisages that a unilateral declaration of independence (UDI) will
take place in a situation where every possible effort has been made to reach a
mutually agreed way forward, but every possible effort ‘has been frustrated’.”
The 1244 resolution was adopted
in 1999, after NATO bombings made the Serbian authorities withdraw from the
territory. The resolution regulated the installation of the UN peacekeeping
mission that administered Kosovo since then.
Two years of internationally
mediated negotiations between Kosovo and Serbia over territory’s political
status ended with no results.
“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 document says.
The experts argue that their
approach “will enable – rather than frustrate – the conclusion of the Final
Status process envisaged in resolution 1244.”
They insist that recognition of
Kosovo as a state is a decision for individual governments to make and that “if
Kosovo satisfies the factual criteria of statehood, it is eligible for
The experts recommend that EU
countries follow the Montenegro precedent, with the EU member states agreeing to
recognize Kosovo in principle, but leaving details and timing to individual
The document does not find
anything legally dubious about recognition. “Generally, once a entity has
emerged as a state in the sense of international law, a political decision can
be taken to recognize it . . . In practice statehood depends on recognition by
more than one state.”
The experts argue that there is
nothing to prevent a new European Union Mission from replacing the UN
administration in Kosovo; nor is there anything to prevent a continuation of the
The European Security and
Defence Policy, ESDP can take on a role in Kosovo as Resolution 1244 provides
for an international civilian mandate in Kosovo. This is a function which the
ESDP mission can fulfil. The experts believe the Kosovo government can invite
the ESDP mission to deploy, and that this would “provide an additional legal
basis for operations in Kosovo.”
The presence of the
International Civilian Representative in Kosovo would not go against resolution
1244, as it does not specify that the civil presence must be provided by United
The experts note that 1244
envisages “a final stage” in which UNMIK oversees the transfer of authority to
institutions established under a political settlement. “1244 can therefore be
read as applying to a situation in which UNMIK is helping post-UDI Kosovo to
establish itself,” they argue.
The KFOR question is
straightforward, the experts say. NATO troops are in Kosovo under 1244, which
does not place any time limit on their deployment. Therefore, the experts
conclude, the KFOR mandate can continue following independence.
As with the ESDP, the experts
recommend that the Kosovo authorities formally invite KFOR to remain, so as to
strengthen the legal basis for KFOR’s presence in the country.
Gjeraqina Tuhina is the Brussels
correspondent for Kosovo`s public TV, RTK. Balkan Insight is BIRN`s online