Global Policy Forum

By Bernhard Knoll

It's significant that neither the SRSG nor the Security Council pronounced Kosovo's declaration of independence a violation of Resolution 1244 – a sign of tacit acquiescence. To international lawyers struggling to reconcile people's rights to self-determination with respect for the territorial integrity of states, the year since Kosovo's declaration of independence has proved fascinating. Some commentators have already argued that the still evolving case of Kosovo proves the claim of a particular aggrieved group may outweigh a former oppressive state's claim to the preservation of its territorial integrity. Whatever the motives for eventually placing Kosovo on the trajectory to statehood and the underlying political-normative choices, there are ample opportunities for international lawyers to analyse a very ambiguous case in the history of state creation. International law establishes parameters for intruding in legally protected rights in the name of maintaining international peace and security: such interference must be necessary, proportionate, in pursuit of a legitimate end, and based on a separate title.

While conditions of necessity, proportionality and legitimacy may have been fulfilled in Kosovo's case, the lack of explicit authorization from the Security Council – a separate title – clearly weakens the line of reasoning developed by those commentators. As we know, all five of the draft resolutions tabled in the Security Council during June and July 2007 had to be withdrawn following the threat of a Russian veto. The internationalized status of Kosovo rests on a multilateral instrument that temporarily suspended the exercise of Serbia's sovereign rights. Its claim to formal sovereignty, however, remained unaffected and continues as long as the UN's Security Council Resolution 1244 of 1999 is deemed to remain in effect. The more than 50 acts of bilateral recognition since February 2008 have arguably challenged Article 25 of the UN Charter, which obliges member states to carry out decisions of the Security Council, and thus also Resolution 1244. The view that "there is no reason why any state should feel inhibited by the continued existence of Resolution 1244 from recognising Kosovo's independence", as the International Crisis Group wrote, therefore, is accurate only if one deems Kosovo's declaration of independence to have been passed in conformity with international law – a question currently being considered by the International Court of Justice, ICJ. Rather than pronouncing itself on the contested issue of secession in international law, or on the "emerging norm" of a collective responsibility to protect and a putatively corresponding right to self-determination following instances of grievous human rights violations, the Court can be expected to investigate whether the pronouncement the Kosovo Assembly was in line with the international legal regime that the Security Council had imposed on the territory in 1999.

More specifically, the Court could elaborate on the question whether, and under which circumstances, the international legal authority entrusted with overseeing Kosovo institutions could have annulled the declaration of independence, in accordance with Resolution 1244. Chapter XII of Kosovo's Constitutional Framework of 2001 could be a first point of departure for this investigation. It explicitly mandated UNMIK's Special Representative of the UN Secretary General, the SRSG, to take "appropriate measures" whenever the Provisional Institutions of Self-Government, PISG, acted inconsistently with Resolution 1244. Exercising unlimited power to review the constitutionality of, and annul, acts adopted by the local legislature, the SRSG can be said to have acted, in the past decade, as "negative legislator". In practice, it has not been uncommon for him to intervene in the legislative process of the Kosovo Assembly and refuse to promulgate laws that, on advice from UN Headquarters, were deemed to be in violation of the Constitutional Framework and thus Resolution 1244. Over the years, the SRSG has also nullified "statements" and "resolutions" of the Kosovo Assembly – political pronouncement that would not have had any direct legal consequences within Kosovo's legal order – which he considered to have been passed "ultra vires". Most relevant in this regard was the draft resolution of the Assembly of November 17, 2005, that reconfirmed "the political will of the people of Kosovo for an independent and sovereign state of Kosovo". This was immediately declared null and void by the SRSG. Earlier, the Assembly's resolution on the "Territorial Integrity of Kosova", of May 23, 2002, challenging the border agreement between the Federal Republic of Yugoslavia and Macedonia, was annulled by the SRSG who declared that this Resolution violated the Constitutional Framework.

In the case in question – the Kosovo Assembly's "declaration of independence" of February 17, 2008 – neither the SRSG nor the Security Council issued any statement as to its (in)compatibility with Kosovo's Constitutional Framework or Resolution 1244. The competence to annul such an act of wide-ranging political and legal significance could have found its basis in §11(a) of Resolution 1244, in which the responsibilities of the international civilian presence are defined as including the promotion of "the establishment, pending a final settlement, of substantial autonomy and self government in Kosovo". An act of "self-determination" by a local institution could have been interpreted, and reasonably so, as an attempt to defy the raison d'íªtre of UNMIK (as its task of promoting the "establishment of substantial autonomy" would presumably be overtaken by an unchallenged declaration of independence and corresponding acts of recognition), and could therefore even have triggered the suspension of the Assembly by the SRSG. This position had been repeated and confirmed by generations of SRSGs, notably by Hans Hí¦kkerup. The "Common Document" of November 5, 2001, which he signed with Belgrade (later endorsed by the Security Council), explicitly stated that "the position on Kosovo's future status remains as stated in UNSCR 1244, and that this cannot be changed by any action taken by the [PISG]". It is clear that the SRSG would have been under an obligation, especially had he been instructed by the UN Secretary-General, to annul the declaration of independence – in accordance with past practice – had he considered it in breach with Resolution 1244, from which he derives his own mandate. No such instruction appears to have been given. It is also relevant that the Security Council has not – after the conclusion of Mr Ahtisaari's efforts in spring 2007, and even within a year of the occurrence of the independence declaration – pronounced on the issue in accordance with Articles 24.1 and 34 of the Charter, including "in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security".

Since the only authority that could have declared, within Kosovo's normative order, the "declaration" null and void remained silent on the matter – despite the formal request by the Serbian government to the UN Secretary-General of February 14, 2008 –, its omission to annul can be interpreted as tacit consent to or, at a minimum, acquiescence in, the course of action taken by Kosovo's legislature. It may therefore be presumed that the "declaration" was passed in line with Resolution 1244. Until it declared independence in February 2008, for over eight years Kosovo had been a territory in limbo. Throughout this time, it had become apparent that this unstable situation reinforced a climate of insecurity in which the conflict remained frozen rather than resolved. The recognition of Kosovo's statehood by a large "coalition of the willing" in the aftermath of Kosovo's declaration of independence – which remains unchecked by the SRSG – confirmed what had long been a conventional wisdom: that Resolution 1244 was no longer a guarantee but had rather become an obstacle to the maintenance of international peace and the security of the region. The support of a large part of the international community for Kosovo's aspirations is thus transforming it from a territory under international administration into a "state in statu nascendi" which, via a messy chain of bilateral recognitions, may be in a position to exercise sovereignty – an issue which will concern the ICJ throughout 2009.