Legally Clear, Politically Muddy


This was a slower week at CLARD, so I would like to take this opportunity to discuss some of my research on Kosovo’s path to independence. Although one blog post cannot capture the complexities and intricacies of Kosovo’s transitional phase, I will do my best to provide a historical snapshot of the process and some major developments that have gotten Kosovo to where it is today.

After NATO forces stepped in to end the war in 1999, the UN Security Council passed Resolution 1244 authorizing a two-faceted international presence in Kosovo. The first facet, an international security presence, was devised to deter renewed hostilities and ensure public order during the transitional period. This role was filled by a NATO-led peacekeeping force known as the Kosovo Force (KFOR). KFOR still operates today with troops from 28 contributing nations, but it is gradually reducing its size and operations until the constitutionally established Kosovo Security Force is fully self-sufficient.

The second facet was an international civil presence conceived to perform pro tem executive functions, facilitate the political process to determine Kosovo’s future, and organize provisional institutions until a political settlement was formed and authority could be transferred to the institutions established thereunder. This role was filled by the UN Interim Administration Mission in Kosovo (UNMIK), which took on four pillars: interim civil administration, humanitarian affairs, institution building, and reconstruction. The head of UNMIK, the Special Representative of the UN Secretary-General, exercised all legislative and executive authority with respect to Kosovo, including judicial administration. So as my supervisor said, the Special Representative practically had the power of a king during the early transitional period.

Between 2005-2007, there were extensive negotiations and attempts at political settlement between Serbia and Kosovo’s UNMIK-sponsored Provisional Institutions of Self-Government, but the parties remained at odds. Coming always to an impasse, it became clear even to UNMIK officials that the potential for reaching a mutually acceptable agreement on Kosovo’s status had dwindled. So on February 17, 2008, a group of Kosovars including the President, the Prime Minister, and 109 of the 120 members of the Assembly declared independence for Kosovo.

This turning point led to another in the form of an advisory opinion from the International Court of Justice (ICJ) regarding the legality of the Kosovars’ unilateral declaration. In late 2008, the UN General Assembly adopted Resolution 63/3--whose sole sponsor was the Republic of Serbia--referring Kosovo’s declaration of independence to the ICJ to determine whether the Kosovars acted in accordance with international law. In 2010, after carefully considering the relevant legal frameworks and hearing arguments from countries across the international community, the ICJ found by ten votes to four that the unilateral declaration of independence of Kosovo did not violate any applicable international law. Concerned with law not politics, the ICJ did not take a position on the validity of recognizing Kosovo’s statehood nor concern itself with the political consequences of its decision, and what was made legally clear in this opinion remains politically muddy.

Today, Kosovo is trying to move forward at home and abroad while still fighting an uphill battle to garner equal standing in the international community. UNSCR 1244 is still in force, but UNMIK no longer performs executive functions and has largely been replaced by the EU Rule of Law Mission in Kosovo (EULEX), which primarily monitors Kosovo’s justice system. The issues I have mentioned previously may spur from lack of international recognition or from still-maturing domestic institutions, but another dynamic Kosovo must navigate is finding the balance between progress and preparedness.

Learning to walk is important to being able to run, and no matter how favorable a next step looks to the people or to the international community, Kosovo must carefully consider whether it is ready to take that step so as not to trip itself. For instance, joining the Council of Europe will be a commendable measure for human rights and rule of law, but with that commitment comes strings like budgetary requirements that could significantly burden an unprepared Kosovo. Here lies an important lesson from Kosovo’s transitional period: what is legally clear may be politically muddy, and what is politically desirable may be practically imprudent.

That is all for now, friends, but I will be back next week with a special post to celebrate the halfway mark of my time in Kosovo.

Ia kalofsh mirë!