Kosovo's independence debated

The question has been discussed by The American Society of International Law whilst a thorough lecture to this question was given by the internationally well-known lawyer of international law, Richard Goldstone. Mr. Goldstone, who was a former chairman of an investigative committee on Kosovo’s future status in 1999, said “Even at that time when Kosovo future status was being discussed ‘we unanimously recommended the supervised independence for Kosovo’ because we knew there was neither any legality nor any fairness to ask Kosovars to return under the Belgrade rule, after considering the fact how they were heinously treated, mass murdered and ethnically cleansed by Serbia.” The preposition was rejected by Russia which has demanded to preserve the sovereignty of Serbia over Kosovo.  Mr. Goldstone explains that "here is a contradiction because while Russia was demanding to preserve Serbia’s sovereignty over Kosovo, simultaneously Russia was supporting the UN resolution to implement the deployment of the UN administration to run Kosovo."

The resolution 1244, which has become the basic law of the UN mission in Kosovo, was one of the main discussions at the conference. Paul Williams, a professor of the international law at the American University in Washington DC, said that “Resolution 1244 does not preserve the sovereignty of Serbia over Kosovo. If we make a thorough analysis of the UN Resolution 1244, it does not state that the Former Federal Republic of Yugoslavia has to be asked or decide over the future status of Kosovo on whether it will be independent or not”, added Paul Williams, a noted professor of international law.

According to Professor Williams, “the declaration of Kosovo independence does not set a precedent, because in the last 15 years we have encountered at least 26 cases of countries that declared independence and became sovereign countries without any agreement with the country they lived under, and the Republic of Kosovo is among them.” John Bollinger, the legal attorney at the US State Department who presented his argument during the discussion said that ”the United States had tried to reach a new resolution over Kosovo but unfortunately it was not possible due to objections from Russia.” He does not agree that Kosovo declared its formal independence in a unilateral way. “This is not a unilateral act but it is a coordinated act by the effort of a large number of countries that worked on achieving this solution, the independence of Kosovo,” added Bollinger, the legal attorney at the US State Department.

The act of Kosovo independence continues to be discussed in various circles. Additionally, one of the experts said that Kosovars will have to work hard to fight all the myths created following the independence of Kosovo. Professor Williams said to VOA that the government of Kosovo should not ignore this debate. “This is a serious debate which the government of Kosovo must participate in a very active way. There are a few myths being created that reject the international recognition of Kosovo independence. Among them is that Resolution 1244 does not permit independence and that the independence is a unilateral act and so forth. All of these are myths, fabricated by the chauvinistic leadership of Serbia that ignores to understand and learn the international law and resolutions,” said Professor Williams.

Comments (12)

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Sarah Franco said:

if there is a case that we can rightly compare with the case of Kosova it is Ireland who bravely liberated herself from british colonialism in 1917. Ireland is a wonderful country who supports the oppressed peoples and the idea of national liberation and self-determination, a generous country whose citizens don't forget the suffering of their forefathers under british rule, but still managed to reconciliate themselves with its culture and language, and in the name of past suffering, oppression and hunger, are always ready to extend their solidarity to others, be that the people who fought for the independence of east-Timor, the victims of the Tsunami in Asia, or recognizing the independence of Kosova. So this Mike from Ireland seems to be missinformed about his own country, no wonder that he says such nonsense about Kosova. I hope that the people of Kosova may look at the irish as a source of hope and isnpiration.

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June 05, 2008
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Sebaneau said:

	The advice given by Paris Law Professor Alain Pellet on the issue of Québec self-determination reminds us that international law universally recognizes the right of former colonies to declare independence whether the former colonial occupier agrees to it or not: http://books.google.pt/books?i...5&dq=alain
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May 31, 2008
Votes: +1

Mike Walsh said:

	First Year students of International Law know that Independence of illegally occupied Kosovo i Metohija is totally against International law. The EU-US have created a mess in the Balkans and don't seem to care that they are now a Universal Disgrace. Mike in Ireland
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May 26, 2008
Votes: -3

Sebaneau said:

Here is an improved version of Sarah Franco's text in Portuguese on the legality of Kosovo independence : " http://cafeturco.wordpress.com...ated-post/ "In February 17, 2008, before the Parliament of Kosovo, Prime Minister Hashim Thaçi declared the Independence of Kosovo, to which Serbia reacted, as would be expected, by proclaiming such a declaration illegal. "The Declaration of Independence stipulates that Kosovo will be a democratic, secular and multi-ethnic Republic, based on equality and non-discrimination, and explicitly mentions its connection with the Ahtisaari Plan, notably regarding the rights of minorities. If implemented, this will make Kosovo one of states in the world which gives the most protections and privileges to ethnic minorities. The Declaration also formulates the wish that NATO continue to exercise the functions it had under the mandate of Resolution 1244, and accepts the establishment of the International Civil Service an the UE mission as delineated by the Ahtisaari Plan. "The transition towards independence was prepared in co-ordination with the governments of the United States, the United Kingdom, Germany and France, as well as the High Representative for the Common Foreign and Security Policy of the EU, Javier Solana. Kosovo has already been recognized as an independent state by 41 countries, which thus took their part of the risks implied by such an attitude. "Such risks lie, on the one hand, in the fact that a non-consensual solution necessarily bears negative implications for the stability of the territory, and on the other, in the questionable character of its legitimacy since, according to International law the legality such act depends on the way one interprets Resolution 1244. "The ambiguous way in which it was written allows for two opposite ways of reading it, which in their turn depend on the perspective chosen to interpret it. "If a sovereignist perspective of international relations is privileged, the reference to Serbian sovereignty and the absence of a new UNSC Resolution are strong arguments against recognition. "Yet, if we give prominence to the respect for human rights and the principle of auto-determination of peoples, the perspective will be different. "The Resolution did not specifically define the method for determining the final status of Kosovo, but made an important reference to the need to respect the Final Act of Helsinki [1975]. "The sovereignist perspective only invokes the articles related to territorial integrity and the principle of non-interference with the internal affairs of the states. Through that angle, not only the Declaration of independence, but the whole international involvement with the Kosovo issue since 1998 would be illegal. I have opted not to retrospectively discuss the legality of the Kosovo intervention, since Resolution 1244 has legitimized it, admittedly after the fact, by invoking Chapter VII of the United Nations Charter. "In what regards the Final Act of Helsinki, the Resolution does not quote any article in particular, and that document also enshrines the principle of self-determination, respect for human rights and the protection of minorities. According to that perspective, the recognition of Kosovo independence does not violate Resolution 1244, and thus such an option does not result in any violation of International Law, since the creation of new states does not fall within the competences of the UN. "On that issue Serbia, which considers the recognition of Kosovo illegal in the context of International Law has announced its intention to ask for an advice from the International Court of Justice."

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May 20, 2008
Votes: +3

Sebaneau said:

"It is my opinion that to interpret the Helsinki Final Act in a strict way, referring to only the articles related to sovereignty... goes against the spirit of this document, and ignores its real meaning and the historical value that it has had in the defense of freedom. "In fact, during the final stage of the cold war, eastern Europe dissidents like Václav Hável invoked the Helsinki Final Act in their defense. While such strategy didn’t prevent them from suffering the consequences of their defiance of the system, it enabled them to make clear to the world that their states had no interest whatsoever [in] respect[ing] International Law, and specifically the agreements their governments had signed. "While applying the Helsinki Final Act to the case of Kosovo, we can neither ignore the degree of violence to which the people of Kosova was systematically subjected since 1912, and particularly in the period between 1989, when its autonomy status was revoked by Slobodan Milošević, and 1999. "Despite the Serbian government['s] vague promises that it would grant Kosovo a special status defined by the formula 'more than autonomy, less than independence', the fact that in the recent past its autonomy was taken away cannot be forgotten. Who could guarantee that in the near future, this act would not be repeated? If we take in account that failing to protect Embassies from being attacked and arsoned is a flagrant violation of International Law, why should we give credibility to the Serbian government's argument that by refusing to accept the Independence of Kosovo they are not only defending their national interests and territorial integrity, but also defending International Law itself? "As soon as I have some available time, i will post a text about recognition of States and international Law, however, this will have to wait. "To those interested, I recommend the work by International Law scholar Alain Pellet: here you can find his legal opinion on the issue of self-determination and International Law. http://books.google.pt/books?i...5&dq=alain pellet&source=web&ots=HJo5d4n6c8&sig=7qumqWjtS1sGLSh2tBHBk4_6oUA&hl=pt-PT "Just for the sake of honesty, I am not a lawyer neither a scholar in International Law. But still i think I am entitled to have my own opinion, because what is at stake here is an issue of freedom and justice, which are subjects that are not the monopoly of Law scholars."

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May 20, 2008
Votes: +3

Sebaneau said:

Sarah Franco has published a text in Portuguese on the legality of Kosovo independence on her blog Café Turco. http://cafeturco.wordpress.com...onal-law/ I may provide an English translation shortly if she uses mine. O processo de independência do Kosovo Sarah Franco, Politica Internacional, Abril 2008 ...No dia 17 de Fevereiro de 2008, perante o Parlamento do Kosovo, o Primeiro-Ministro Hashim Thaçi proclamou a Independência, ao que a Sérvia reagiu, como seria de esperar, declarando ilegal tal declaração. A declaração de Independência estipula que o Kosovo será uma republica democrática, secular e multi-étnica baseada na igualdade e na não discriminação, e menciona expressamente a sua vinculação ao Plano Ahtisaari, incluindo nas questões referentes aos direitos das minorias, o que, a concretizar-se, fará do Kosovo um dos estados do Mundo que maior protecção e privilégios confere às minorias étnicas. A Declaração afirma também o desejo de que a NATO continue a exercer as funções para as quais foi mandatada pela Res.1244, e aceita o estabelecimento do Serviço Civil Internacional e da missão da UE tal como delineados pelo Plano Ahtisaari. A transição para a independência foi preparada em coordenação estreita com os governos dos EUA, Reino Unido, Alemanha e França, bem como com o Alto-Representante da UE para a a PESC, Javier Solana e, em um mês, o Kosovo foi reconhecido como Estado Independente por mais de três dezenas de Estados, que, assim, assumem a sua quota-parte nos riscos que tal atitude necessariamente implica. Esses riscos consistem, por um lado, no facto de uma solução não consensual ter necessariamente implicações negativas na estabilidade do território, e, por outro, no carácter contestável da sua legitimidade, uma vez que, em termos de Direito Internacionais, a legalidade desta opção fica dependente da interpretação a dar à Res. 1244. A ambiguidade com que foi redigida permite duas leituras opostas, que, por sua vez, dependem da perspectiva adoptada por quem a interpreta. Se for privilegiada uma visão soberanista das Relações Internacionais, a referência à soberania sérvia e a ausência de uma nova resolução são fortes argumentos contra o reconhecimento da declaração de independência. Mas, se valorizarmos sobretudo o respeito pelos Direitos Humanos e o princípio da auto-determinação dos povos, a perspectiva será diferente. A resolução não definiu em concreto o método de determinação do estatuto final do Kosovo, mas fez uma importante referência à necessidade de respeitar a Acta Final de Helsínquia. A perspectiva soberanista invoca apenas os artigos relativos à integridade territorial e ao princípio da não ingerência nos assuntos internos dos estados. Por esse prisma, seria ilegal não apenas a declaração de independência, mas todo o envolvimento internacional na questão do Kosovo desde 1998. Não cabe aqui discutir retrospectivamente a legalidade da guerra do Kosovo, uma vez que a Resolução 1244 a legitimou, ainda que a posteriori, ao invocar o Capítulo VII da Carta das Nações Unidas. Quanto à Acta Final de Helsínquia, a resolução não cita nenhum artigo em concreto, e este documento consagra também o princípio à auto-determinação, o respeito pelos Direitos Humanos e a protecção das minorias. Segundo esta perspectiva, o reconhecimento da Independência do Kosovo não viola a Resolução 1244, pelo que tal opção não se traduz numa violação do Direito Internacional, já que a ONU não tem competências para determinar a criação de novos estados. Sobre esta questão, a Sérvia, que considera o reconhecimento do Kosovo ilegal à luz do Direito Internacional anunciou a intenção de solicitar um parecer ao Tribunal Internacional de Justiça. É inegável que a credibilidade da ONU não sai reforçada deste processo. No entanto, tal deve-se mais aos constrangimentos causados pelas relações de poder no seio do Conselho de Segurança, que não são de todo inéditos, do que à actuação das Nações Unidas no terreno.

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May 17, 2008
Votes: +1

Sebaneau said:

	Actually Resolution 1244 does mention Serbia on one occasion, in a context which clearly implies that it is a territory distinct from Kosova.
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April 26, 2008
Votes: +1

Tringa said:

I actually had a final in University a couple days ago... for European History.. and one of the questions in the exam was about UN resolution 1244... I have read the document prior to the exam to prepare myself... and no where on there does it state the word "Serbia". Everything in the document consisted of the word Yugoslavia or ex-Yugoslavia, therefore suggesting that Kosova was suppose to have an independent autonomy within Yugoslava and not Serbia. But since Yugoslavia does not exist anymore, Kosova has as much right as Macedonia, Bosnia even Serbia, to breakaway and be it OWN government. Thus Kosova's Independence did not break any laws. And Im sure Resolution 1244 did not give Serbia the right to Ethnic Cleans Albanians, which is a bigger violation of International law.

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April 21, 2008
Votes: +4

bluerose799 said:

Don’t forget that: The New Yugoslav Constitution in 1974 gave to Kosova the autonomy from Serbia. “Following serious rioting by Kosovars in 1968 (and with the Soviet invasion of Czechoslovakia pushing Albania and Yugoslavia toward greater cooperation), Tito increased federal funding to Kosova. In 1974, a new Yugoslav constitution gave the Kosovo provincial assembly the right to elect its own representatives to the Chamber of Republics and Provinces of the Yugoslav federal legislature”. http://www.hartford-hwp.com/archives/62/094.html On July 5, 1990, the Serbian parliament (Illegally and Unilaterally) abolished Kosova's political autonomy and dissolved its provincial assembly and government. The only Albanian-language daily newspaper, Rilindja, was banned, as were all TV and radio broadcasts in Albanian.

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April 21, 2008
Votes: +4

albi said:

I won't pretend to be a lawyer, but as far as I know, there isn't any "international law" that requires either approval by Russia or approval by UNSC for a territory to become independent. The issue has always been and still is a matter of international recognition by other foreign governments. Individual states therefore have exercised their right and have recognized Kosovo without breaking any laws. Other governments, like Serbia and Russia, also have the right to not recognize Kosovo, and they haven't done so. In the end, it's arithmetics.

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April 17, 2008
Votes: +4

strav said:

	Paid propaganda LILO and you know it. Thelanguage of this so called professor suggests that he is in no way impartial and is wrong on many counts. The only myths being created are by this so called professor, the US, EU and Thaci. They all neglect to mention the Helsinki treaty. I suggest that this piece of crud reporting be put into some real perspective.
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April 16, 2008
Votes: -4

Lilo said:

According to customary international law Kosovo's independence is legal. In the last decades many countries have declared independence. In addition to that, UN Charter (The Constitution of United Nations) binds all signatory countries to protect their citizens and ensure their security. During the Serbian ruling, Serbs not only killed innocent adult civilians they also killed women, kids etc. They were terrorizing the population of Kosovo by mass killings, genocide and ethnic cleansing. Basically, Serbia was a failed state because it failed to provide basic natural rights to the Kosovo's population which are the rights to live, right to education, right to political participation etc. These are one of the many reasons why international lawyers legitimize Kosovo's declaration of independence as legal.

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April 15, 2008
Votes: +5