peacefare.net

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A Kosovar friend sent me this triumphalist claim of Serbian victory in the recent agreement between Belgrade and Pristina on how Kosovo will be identified at meetings in which Serbia also participates:

Serbia’s success in putting an asterisk connoting the numbers “1244” in front of future Kosovar delegations to European meetings means the terms under which Kosova* participates in “Europe” explicitly recognizes the language in a resolution that preserves a measure of Serbian sovereignty over its former province. This advertisement of such sovereignty – dormant as it may be – marks tacit American acceptance of the defeat of its diplomacy of the past six years. The asterisk means America has relegated its client in Kosova* to something like the status currently enjoyed by Taiwan.

The author is my respected colleague of many years, David Kanin, who happens now also to teach at Johns Hopkins/SAIS, as I do.

But David is dead wrong.  He is trying to make more of an asterisk than the little fellow ever imagined he might be.  And more than he is.  The only thing the asterisk guarantees is the undying hostility of most of Kosovo’s population, which will no doubt begin to add one to Serbia*.

David’s claims are wrong in many ways.

Serbs and their supporters have been telling themselves since 1999 that that 1244 preserves “a measure of Serbian sovereignty over its former province.”  This is wrong, which is immediately apparent from their use of the appellation “its former province.” Even they recognize that something irreversible has happened to Kosovo. The reference to Yugoslav (now Serbian) sovereignty is in the preamble of 1244 and has no legally binding status. It simply reaffirms a commitment made at the time of the resolution:

Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia

Circumstances change.  The United States and many other countries have decided that commitment no longer holds.  You may not agree with that change of heart, but nothing in 1244 prevents it.

Far more important is that 1244 clearly refers in its operative paragraphs to a political process for deciding Kosovo’s future status. Among other mentions, there is this one that refers to the responsibilities of the “international civilian presence”:

Facilitating a political process designed to determine Kosovo’s future status, taking into account the Rambouillet accords (S/1999/648);

In a final stage, overseeing the transfer of authority from Kosovo’s provisional institutions to institutions established under a political settlement;

That process, conducted under the aegis of Marti Ahtisaari, was completed years ago, with full participation (but not final approval) of Russia and Serbia. What the asterisk signifies to anyone who reads past the preamble (which has no legal standing) to the operative paragraphs of the resolution is that Kosovo has completed the process foreseen there with a clear and now widely but not universally accepted result.

Russia and Serbia are of course perfectly entitled not to recognize that result, but so are others entitled to recognize the new state. The notion that Kosovo, now recognized by 88 other sovereign states, has no more status than Taiwan is risible, though I hasten to add that I will be happy for the day it has Taiwan’s economy and even governance.  The International Court of Justice has advised that its declaration of independence was not in violation of 1244, a claim that Serbia made loudly and repeatedly. To pretend that preambular language with no legal significance outweighs not only the operative paragraphs but also an ICJ advisory opinion is to live in fantasyland.

What the agreement does for Kosovo is to get it a contractual relationship with the EU, including a “feasibility study” for a Stabilization and Association Agreement, thus neutralizing the heretofore effective veto of the five non-recognizing EU member states. While they can continue to not recognize Kosovo, they are now part of an organization that is treating it as a sovereign and independent state capable of undertaking obligations that only such states can undertake. This is no small matter, not outweighed somehow by an asterisk.

Is 1244 still in force?  Yes, since it hasn’t been altered or withdrawn.  But like many Security Council resolutions most of its terms have been fulfilled and it will fade into irrelevance.  The only benefit to Serbia of the asterisk I see is that it will make it harder to forget 1244, which unfortunately for Belgrade provides the legal basis for answering the otherwise difficult question, why is Kosovo entitled to independence and not other provinces?  The answer is 1244 and the political process for determining final status foreseen there.

I’ve challenged David to a duel.  He has accepted.  We won’t do it at dawn. But I hope we’ll meet soon in public at SAIS to cross swords and maybe provide some enlightenment to both sides of this issue.

In case anyone wonders:  my title is intended to convey the vast over-valuation of the asterisk in David’s piece.