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Update Report No. 1: Kosovo

Expected Council Action
The Council will have a public meeting on Kosovo on 11 March followed by consultations. On 6 March, Serbia had asked for an urgent meeting to consider what it referred to as an “aggravation of the situation” in Kosovo. Serbia’s Foreign Minister, Vuk Jeremic, is expected to address the Council during the public session.

Serbia is expected to raise the issue of the formation of an “International Steering Group (ISG)” for Kosovo. On 29 February, it wrote to the Secretary-General stating its position that this Group had no proper legal or political basis.

It seems unlikely that there will be any particular outcome of the Council meeting other than the formal record of the debate.

Recent Developments
Kosovo declared independence on 17 February. At the request of Russia, the Council held an emergency closed door meeting that same afternoon. The Council was briefed by the Secretary-General on the latest developments. The UK, France, Croatia, Belgium, Italy, Germany and the US issued a joint statement reiterating their position that:

• UN Special Envoy Maarti Ahtisaari’s proposal was the only viable option for peace and security for Kosovo;
• the declaration of independence was the conclusion of a status process that had exhausted all avenues for a negotiated outcome; and
• the processes are fully in accordance with international law and resolution 1244.

They also urged all sides to refrain from provocative action and reiterated that violence would not be tolerated.

For their part Russia emphasised their rejection of the declaration of independence.

Serbia wrote to the president of the Council on 17 February outlining their position and calling for an emergency debate. Russia also wrote to the Secretary-General on 17 February supporting Serbia’s position. Both letters were circulated as documents of the Security Council as well as the General Assembly under agenda item 86—the rule of law at national and international levels—of the Sixth Committee.

The Council held an open debate on 18 February at which Serbia’s president, Boris Tadic and the Secretary-General both spoke. Tadic asked the Council to ensure that the UN Charter and resolution 1244 were respected and for the Secretary-General’s Special Representative, Joachim Rucker, to declare Kosovo’s independence declaration null and void. He also stressed that NATO’s Kosovo Force (KFOR) must remain status-neutral and that Serbia would never recognise the independence of Kosovo. The Secretary-General said that the developments were likely to have significant operational implications for UN Mission in Kosovo (UNMIK) but

“pending guidance from the Security Council, UNMIK will consider Council resolution 1244 as the legal framework for its mandate and will continue to implement its mandate in the light of the evolving circumstances.”

The Secretary-General also noted that as he intended to act in an “effective, realistic and concrete manner” and that pending Council guidance, he might have to adjust to developments and changes on the ground.

The security situation in Serbia and northern Kosovo was tense following Kosovo’s declaration of independence. On 20 February, protestors against Kosovo’s independence set fire to the US embassy and attacked several other embassies in Belgrade. The next day the Council issued a press statement condemning “in the strongest terms” the mob attacks.

Serb students have organized daily protests in northern Mitrovica following Kosovo’s declaration of independence. On 20 February, there were attacks by Serb fringe groups on two boundary crossings in the north. On 4 March, UNMIK reasserted control over a rail line in northern Kosovo which had been used by Serbia to send two of its trains south.

On 9 March, Serbian Prime Minister Vojislav Kostunica resigned claiming his government was divided irreparably following Kosovo’s announcement of independence. He has called for national elections on 11 May. Kostunica had been pushing his coalition allies to reject closer ties with the EU. Serbia’s President Boris Tadic has argued that Serbia can best protect its position by joining the EU.

On 4 February, the EU established a European Union Rule of Law Mission (EULEX) to provide support for Kosovo through its Council’s Joint Action 2008/124/CFSP. The EULEX is a peace and justice mission which is expected to assist the government of Kosovo to supervise in the areas of justice and policing in Kosovo. The EU representative in Kosovo, Peter Feith, was appointed as the International Civilian Representative for Kosovo.

On 28 February, an International Steering Group for Kosovo was formed. Initial membership includes Britain, France, Germany, Italy, the US, Austria, the Czech Republic, Finland, Sweden, Turkey, Belgium, Denmark, Hungary, Slovenia and Switzerland.

Countries began recognising Kosovo’s independence on 17 February. At the time of writing, 27 countries had given formal recognition including 16 EU members and the US.

Key Issues
The most direct key issue for the Council is the status of resolution 1244 in the period that follows the declaration of independence. In the absence of any new resolution, resolution 1244 is expected to continue to be the legal framework for the ongoing role for UNMIK. However, given the changed circumstances, as Kosovo gradually assumes full control of the key elements of government, the Secretary-General may need to progressively make adjustments reducing UNMIK’s activities in terms of what it actually does on the ground. Russia is likely to continue to react strongly to any formal change to resolution 1244 and may even take issue with administrative changes to UNMIK. Other members feel that Council practice allows the Secretary-General flexibility to adjust mission activities downwards and no new resolution is needed. An impasse in the Council on this issue could lead to UNMIK personnel remaining in Kosovo over a number of years.

A second key issue for the Council is the fragile security situation in northern Kosovo. If there is a serious outbreak of violence, KFOR will be faced with tough decisions. Russia has warned that taking repressive measures against the Kosovo Serbs would be an illegal act. Closely linked to this issue is the overall risk of instability to the Balkans region.

A related issue is how to react to Serbian entrenchment of parallel institutions in northern Kosovo and Serbia’s encouragement to Kosovo Serbs not to participate in Kosovo government institutions. Russia has suggested that Kosovo’s declaration of independence could lead to the partitioning of the northern part of Kosovo. Some observers feel that a soft partition has already occurred.

Another immediate issue is the formation of the ISG. Serbia argues that the purpose and mandate of this Group violates the principles of the UN Charter, resolution 1244 and the Helsinki Final Act. If the ISG in practice begins to replace the Contact Group on Kosovo, Russia (which is part of the Contact Group but not the ISG) is bound to react negatively. Although Kosovo’s leaders requested that the ISG be established, and the existence of self-selected “Groups of Friends” has become quite common on a number of international issues, members of the ISG are using terminology in line with Ahtisaari’s recommendations, and this is likely to enhance concerns of those in the Council who feel that implementing Ahtisaari’s proposal without Council approval is wrong.

A significant issue flowing from the Council’s overall failure on the Kosovo issue is the impact on the Council’s wider effectiveness and its ability to handle future peace and security issues. In addition, there are some concerns that having a regional organization, like the EU, step in because of an impasse in the Council could lead to a shift in the power dynamic between the Council and regional organizations. Also, related to this is the issue of whether the tense relations that have developed over Kosovo will impact on dynamics over other issues on the agenda.

A further issue is whether there is a need to resolve the legal questions that have been raised over Kosovo’s declaration. Opponents of Kosovo’s independence claim that a unilateral declaration of independence is a violation of international law. They argue that resolution 1244 gives no authority for independence and that Serbia as the territorial sovereign must consent to independence for it to be legal. Proponents of Kosovo’s independence argue just as strongly that resolution 1244 does not preclude independence as it does not predetermine or limit final status, that the commitment to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia was a non-binding preambular affirmation of a general principle, and that therefore the declaration of independence can be valid in accordance with the wider principles of general international law, including the law of self determination.

A related legal issue is over the EU mission and whether, as Russia argues, the EU mission needs a Council decision. Others argue that no new decision is needed as resolution 1244 authorised the Secretary-General not only to establish an international civil presence but for it to work with relevant international organizations. Moreover they believe that it is open to the new state of Kosovo to consent to an EU mission on a bilateral basis.

Options
The most likely option is that Council members will listen to Jeremic’s statement and make statements of their own, but take no action.

Council Dynamics
The Council remains deeply divided over the issue of Kosovo’s independence. The open debate on 18 February gave members an opportunity to publicly state their reaction to Kosovo’s declaration of independence. There was clear endorsement from the UK, France, the US and Costa Rica whose governments had already recognised Kosovo’s independence. Belgium, Italy and Croatia also showed support and indicated that they would soon recognize Kosovo’s independence.

Russia’s has remained firmly committed to its position that Kosovo’s declaration of independence is a violation of Serbia’s territorial integrity and is inconsistent with resolution 1244. While some other members expressed their grave concern over the unilateral declaration of independence, none of the other members have backed Russia’s suggestion that the declaration of independence should be declared null and void.

A number of non-permanent members such as China, Vietnam, Indonesia, Libya and South Africa continue to worry about the precedential impact of Kosovo’s unilateral act of self determination on sovereignty and territorial integrity in other parts of the world. (South Ossetia and Abkhazia in Georgia have called on the UN, Russia, the EU and the Organisation for Security and Cooperation in Europe to recognize their independence.) There is some sympathy for Serbia’s position among these members. Some of them also seem to believe that a negotiated solution to Kosovo’s status is still possible.

UN Documents

Useful Additional Source

• EU Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX, KOSOVO, Official Journal of the European Union.

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