*?
I debate David Kanin, my colleague here at SAIS, today on the question the asterisk* question. Here are the notes I prepared for myself:
I appear before you today to debate the following proposition: that the asterisk* following Kosovo that will be used in European regional meetings somehow limits or conditions its sovereignty and independence.
That is not the case. The footnote attached to that asterisk * refers to two things: UN Security Council resolution 1244 and the advisory opinion on Kosovo’s declaration of independence issued by the International Court of Justice. The advisory opinion says that the declaration was not illegal. The controversy, if there is any, concerns 1244.
I’ve got four factual propositions about 1244 for you today:
- UN Security Council resolution 1244 does nothing to preserve Serbian sovereignty over Kosovo but instead provides the basis for a final status decision.
- The process preliminary to a final status decision foreseen in resolution 1244 was completed in March 2007 when former Finnish President Marti Ahtisaari reported to the UNSG.
- The decision itself was taken in the Kosovo declaration of independence, now accepted and recognized as establishing a sovereign state by 89 other sovereign states.
- The International Court of Justice, in response to a request initiated by Serbia, has advised that the declaration of independence violated no international law.
Let me explain.
1244: You may have heard, because Belgrade declares it long and loud, that UNSC resolution 1244 acknowledges Serbian sovereignty over Kosovo. That it does. In the preamble, the resolution reaffirms “the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia.” But this is preambular language, which in international law is not binding. Circumstances change. The United States and 88 other countries have decided that they no longer wish to uphold a commitment that existed in 1999, but which they are not obligated to continue. This is their right: no one can claim that the United States gave up its right to extend recognition when it voted in favor of 1244. Certainly the ICJ did not think so.
The process preliminary to a final status decision: 1244 also “authorizes the Secretary General…to establish an international civilian presence in Kosovo in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo.” This is complicated but it clearly associates “substantial autonomy within the FRY” with an interim UN administration. The resolution goes on to say that one of the main responsibilities of the international civilian presence is “promoting the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo” as well as “facilitating a political process designed to determine Kosovo’s future status.”
What was that political process? The President of the Security Council was absolutely clear: on October 24, 2005 he said “The Council…supports the United Nations Secretary-General’s intention to start a political process to determine Kosovo’s Final Status, as foreseen in Security Council resolution 1244…” The Secretary-General thereafter appointed Marti Ahtisaari to conduct that political process, with the full participation of Serbia and Montenegro as well as the Russian Federation. As Ahtisaari said in his final report: the Security Council responded to Milosevic’s actions in Kosovo
…by denying Serbia a role in its governance, placing Kosovo under temporary United Nations administration and envisaging a political process designed to determine Kosovo’s future.
That process concluded in March 2007 with Ahtisaari’s recommendation: “independence, to be supervised for an initial period by the international community” for Kosovo.
Serbia and Russia rejected this recommendation.
The final status decision: That was their right, but other states accepted it. Kosovo proceeded with its declaration of independence, which was not unilateral but thoroughly coordinated with not only the United States but also the European Union and many other states. When asked for its opinion, the ICJ could find nothing in international law—including in resolution 1244—to bar Kosovo from declaring its independence. Other sovereign states clearly have the right to recognize, or not, as they see fit.
Conclusion: So what does the asterisk signify? Nothing more than what it says in the footnote: a UNSC resolution that is the basis for a final decision on Kosovo and an ICJ opinion that found nothing unlawful about how the final decision was taken.
The asterisk conditions Serbia’s claims of sovereignty, denying them full validity, while doing nothing to limit Kosovo’s sovereignty and independence. I’d wear that asterisk with pride.
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Very rational points – but this is the Balkans. Serbia wanted the * as a way of marking Kosovo as something less than an independent state and is now willing to make a spectacle of itself by insisting on reading the text of the footnote (with commentary) aloud at every regional meeting where both Serbia and Kosovo are present. Perhaps they hope to humiliate Kosovo into returning to Serbia as a province to avoid the disgrace? They’ve had good luck so far convincing their own people that 1244 is an absolute guarantee of Serbia’s permanent, if temporarily suspended, sovereignty over Kosovo, after all – repetition has produced wonders, in at least that case. You can see why they tried to persuade the EP to enforce the asterisk provision in all their documents, too. (If the U.S. participates in any of those regional meetings I hope it adds a footnote to its own name: United States of America*/* Declaration of Independence, 1776 – Constitution ratified 1791. As a reminder of how long these things can take, if nothing else.)
The citizens of Kosovo who objected vigorously against accepting anything other than “Republic of Kosovo” had a point I didn’t see at the time. In Yugoslavia, Kosovo had all the rights of a republic – including chairing the rotating presidency – but it was not legally allowed to secede under the constitution like the entities actually termed republics simply because it didn’t have the name. They’ve learned to read the fine print.
Territorial integrity is at the heart of international law. So even without the preamble resolution 1244 would do nothing to undermine Serbia’s territorial integrity including Kosovo as long as it not explicitly said otherwise – what it doesn’t.
As for the ICJ, it only commented on what Kosovo did. And it basically said there is nothing in international law that forbids such a declaration by a group of people. So if tonight in the pub you and your friends decide to declare Washington independent there is nothing in international law that is against that (but US law might give problems). Contrary to what you say the ICJ evaded the other side of the equation: it said nothing about the legality under international law of other countries recognizing such a declaration of independence. And given the obvious sympathy of the ICJ for the Kosovar side that should be telling…