International law, politics, and the future of Kosovo.

Position:Includes discussion - Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law - Discussion

This panel was convened at 1:00 p.m., Thursday, April 10, by its moderator Justice Richard Goldstone, former Chair of the International Independent Inquiry Commission on Kosovo, who introduced the panelists: John Bellinger of the U.S. State Department; Hans Corell, former Legal Counsel of the United Nations; and Paul R. Williams of American University and the Public International Law and Policy Group.


I would like to welcome you all to this session on Kosovo, and I would like to congratulate the organizers for this breaking news event. It is a situation that is replete with interesting legal, political, and moral issues that have been very much debated, particularly since the NATO military intervention in 1999.

It has been debated at the governmental and international level, at the UN Security Council, and also by many international and domestic NGOs. I first became involved when I was sitting peacefully in my chambers at the Constitutional Court in South Africa, and I received a telephone call on behalf of the Swedish Prime Minister, Goran Persson. I was invited to chair an independent, international investigation on Kosovo. This was very soon after the military campaign ended with the Security Council Resolution that put a UN Administration into Kosovo. In particular, he was concerned about the law relating to humanitarian intervention. He was interested in the way the military campaign was implemented, and the aftermath--the future of Kosovo.

Typical of the Swedish approach--I am sure Hans Corell will not object--Prime Minister Persson said, "ff you agree, I would like you to have as a co-chair, Carl Tham, a leading Swedish diplomat. Here is x-million dollars. Spend it as you wish. Work out your own mandate. And that is the end of Swedish Involvement. You are now independent and you choose what goes on in this commission." The commission, consisting of members from a number countries, issued a unanimous report. We recommended that Kosovo should be given conditional independence. We concluded that it would not be fair, just, or politically acceptable, to expect the Albanian population of Kosovo again to be ruled from Belgrade, after the way they were treated by the Serbian Army and paramilitary.

Nothing came of that recommendation and the Security Council went on and on debating their resolution, which of course, contains a contradiction in terms. Its resolution both recognized the sovereignty of Serbia over Kosovo, and at the same time, said it was going to put in a UN Administration. And of course, there is a built-in contradiction between doing those two things--the Russian Federation concentrates on the sovereignty aspect, and the NATO countries and UN on the other. Then in 2007, Martti Ahtisaari, the former President of Finland who had been appointed to make recommendations regarding Kosovo to the Security Council, came up with a solution not all that different from the one we had recommended many years before. Russia, of course, thwarted the acceptance of his solution, and the time literally ran out for the Kosovo Albanians. On the 17th of February of this year, Kosovo unilaterally declared itself to be an independent republic. At the end of last month, the independence had been recognized by thirty-six nations, including the United States and a number of members of the European Union. The independence announced by Kosovo raises a number of complex political and legal issues relating to self-determination, secession, and so on.

The American Society of International Law has assembled a remarkable panel, the members of which will speak in the order in which they are sitting, from left to right. I will introduce them very briefly because we do not want to take more time from them and from you. Professor Paul R. Williams holds a joint appointment as a Professor of Law and International Relations at the American University School of International Service and the Washington College of Law. He directs the J.D./M.A. joint-degree program at those schools. He is also the Executive Director of the Public International Law and Policy Group, which provides pro bono legal assistance to developing states and states in transition. He has been an advisor in many transitional situations, including Iraq and Kosovo. Ambassador Hans Corell was until recently the Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations. He held that position since March of 1994, and I must say it was a great privilege and pleasure for me to get to know him when I was first Chief Prosecutor in The Hague. Mr. Corell was my guide in a very friendly fashion. His background is that of judge in his home country of Sweden, and for many years a leading diplomat at the United Nations. Before he was Under-Secretary-General he was for some years in the Swedish delegation at the General Assembly. John Bellinger is the Legal Adviser to the Secretary of State and has occupied that position since April 2005. He started his legal career in private practice with Wilmer Cutler and Picketing here in Washington, DC, and after that he served various positions in government, including between 2001 and 2005 as Senior Associate Counsel to the President and Legal Adviser of the National Security Council at the White House. So without further ado, we will hear from each of our panelists, and I will ask them after they finish to comment on each other's contributions and then there will be time for you to take the microphone. I will invite you at the appropriate time to state your name and affiliation, and to address the panel in general or its individual members.

* Former Chair of the International Independent Inquiry Commission on Kosovo.


Thank you, Richard. The title of my presentation this afternoon is "Demystifying the Kosovo Precedent," and as many of us heard yesterday afternoon in this room, Prince Zeid and Ambassador David Scheffer argued a number of times that diplomats, lawyers and academics will go to great lengths to protect the interests of their country. Now "For the Love of Country"--this was the title of Prince Zeid's presentation--many diplomats and lawyers have created a number of myths relating to the precedent that is being created by Kosovo. There is the myth that somehow this recognition is illegal. There is a desire to box Kosovo into a narrow precedent that is sui generis. There is a move to erode the moral authority surrounding the Kosovo precedent. And there has been an effort to move away from focusing on the victims and a return to protecting state interests. As a result, for the large part, the international community has adopted yet again the Serbian rhetoric.

So what I will do with the seven or eight minutes allotted me is basically go through three or four of the myths that we see developing around this Kosovo precedent and try to debunk them. The first myth, which is very widespread, is that Resolution 1244 preserves the sovereignty and territorial integrity of Serbia and prohibits Kosovo independence. A close reading of UN Resolution 1244 confirms it contains no requirement for the Federal Republic of Yugoslavia to consent to Kosovo's independence. There was no requirement of a UN Security Council Resolution confirming the recognition of an independent Kosovo or endorsement of the political settlement. There is a reference to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia. That occurs in the preamble and it is conditioned by the relationship to the Helsinki Final Act and Annex II of the resolution. Annex II of Resolution 1244 is a military agreement, which was negotiated on the Macedonian-Kosovo border that was eventually signed in Belgrade. And it only references the sovereignty and territorial integrity of Serbia in the context of the interim political arrangement and interim political framework for the governance of Kosovo. There is no reference to the perpetual sovereignty and territorial integrity of Serbia in Resolution 1244. It does provide for a political process to determine Kosovo's future status, taking into account the Rambouillet Accords, as well as refer to the sovereignty and territorial integrity of Serbia in the Preamble. However the operative paragraph, the penultimate paragraph, provides for an international mechanism at the end of three years to determine Kosovo's final status based upon, among other things, the will of the people of Kosovo.

The second myth is that the resolution of the question of Kosovo's independence should be dictated by the 1974 Yugoslav constitution. But I can tell you at the time when I was at the State Department drafting letters of recognition for diplomatic relations for the successor states of Yugoslavia, none of those letters referenced the 1974 Constitution. And if you ever want to have an eight-hour conversation with Balkan lawyers, ask them about whether the 1974 Constitution provides the same rights and privileges to Kosovo and Vojvodina as it did to the other republics of the Socialist Federal Republic of Yugoslavia (SFRY). It is very arcane and very unclear and not something on which we should be basing our consensual recognition of the successor states of the SFRY.

The third myth is that it is necessary for a state secession to be consensual. We had a similar situation in the former Soviet Union. The establishment of the twelve republics that sought secession from the Union of Soviet Socialist Republic (USSR) was not consensual. Yesterday, Edwin Williamson reminded me that on the eve of the US recognition of the republics of the former Soviet Union, we received word at the State Department that the White House on Christmas Eve was going to recognize these states, which were seeking independence, and they asked whether we had a legal basis for consent from the federal institutions. Todd Buchwald, Phil Bobbitt, Ed Williamson and I...

To continue reading