20 December 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.
By Gjeraqina Tuhina in Brussels
A confidential document drawn up by legal experts from governemnts 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 recognition.”
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 member states.
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 KFOR presence.
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 Nations.
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. (BIRN)
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