United Nations Security Council Resolution 1244, passed in 1999, reaffirmed in its preamble the "commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia" and authorised "an international civil 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", i.e. the United Nations Interim Administration Mission in Kosovo (UNMIK), with security provided by a NATO-led Kosovo Force (KFOR). The Resolution also authorised a process to determine Kosovo's final status. Concerning the latter, Annex 1 to the Resolution states that the "political solution to the Kosovo crisis" should take "full account of ... the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia".
In the context of the above, the controversy over the legal basis of Kosovo's status has centered on two fundamental principles of international law: the principle of the territorial integrity of states and the right to self-determination of peoples. Despite the general belief that there is a universal right to self-determination, as laid down in the UN Charter, until recently this right has usually been viewed as having only limited application. Specifically, it has been applied to territories under military occupation or colonies. Even in these cases, the application of the right of self-determination was seen to be applicable only at the point of decolonisation. Instead, the emphasis has been placed on the territorial integrity of states. This too is laid down in the UN Charter.
In the context of European security, the 1975 Helsinki Final Act specifies "Inviolability of frontiers" and "Territorial integrity of States" on one hand and "Equal rights and self-determination of peoples" on the other hand. Where the two principles come into collision, the international community has previously favoured the principle of the inviolability of borders. In these cases, the right to self-determination was instead interpreted as a right for a minority population of a specific community to manage their own affairs within the framework of an existing state according to some form of autonomy. In this regard, those who oppose Kosovo's declaration of independence argue that the move was unacceptable under the previously existing framework of international law.
Supporters of Kosovo's independence take a different view and argue that there is an emerging understanding of the principle of self-determination that is more fluid than the traditional view. For example, according to a NATO report on the question of Kosovo's status (see External Links), the Declaration on Friendly Relations states a region may have the right of secession in the case of foreign occupation or if the region is a colony of another nation. The NATO report claims, while mentioning disagreement on the interpretation, that a third condition exists when "a people whose right to internal self-determination has been thoroughly violated by a Government that does not represent the people" and suggests Kosovo qualifies under this condition. In the report a Canadian Supreme Court ruling on the secession of Quebec is cited which states:
The international law right to self-determination generates at best, a right to self determination...where a people is oppressed... or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to the right to external self-determination because they have been denied the ability to exert internally their right to self-determination
Following this, the NATO report discusses the exercise of what is seen as an emerging right to secession in international law represented by the response of the international community in the cases of the secessionist movements in Eritrea, East Timor, the USSR, and Yugoslavia. However, it concludes that while there is a case in favor of a right to secession for Kosovo, the report nevertheless rejects the right to secession in cases where regions are open to democratic mechanisms.
In the preamble of the Constitution of Serbia Kosovo is defined as an "integral part" of Serbia with "fundamental autonomy". On 18 February 2008, the National Assembly of the Republic of Serbia declared Kosovo's declaration of independence null and void per the suggestion of the Government of the Republic of Serbia, after the Constitutional Court of the Republic of Serbia deemed the act illegal on the basis of the UN Charter, the Constitution of Serbia, the Helsinki Final Act, UNSCR 1244 (including previous resolutions) and the Badinter Commission.. On March 27, 2008 Serbian Foreign Minister Vuk Jeremic said Serbia would request the International Court of Justice to review the legality of Kosovo's declaration of independence.
On 26 March 2008, the Government of Serbia announced its plan to call on the International Court of Justice to rule on the declaration of Kosovo’s secession. Serbia will seek to have the court's opinion on whether the declaration was in breach of international law. Also, an initiative seeking international support will be undertaken at the United Nations General Assembly when it gathers again in New York in September of 2008.
On August 15, Serbian Foreign Minister Vuk Jeremić officially filed a request at the United Nations seeking opinion of the International Court of Justice. United Nations General Assembly will vote on this proposal when it reconvenes in September.
The text of the resolution filed in the UN reads as follows:
The United Nations General Assembly adopted this proposal on October 8, 2008 with 77 votes in favor, 6 votes against and 74 abstentions.
The 77 countries that voted for the initiative A/63/L.2 of Serbia were: Algeria, Angola, Antigua and Barbuda, Argentina, Azerbaijan, Belarus, Bolivia, Botswana, Brazil, Brunei, Cambodia, Chile, China, Costa Rica, Cuba, Cyprus, Democratic Republic of the Congo, Djibouti, Dominica, Dominican Republic, East Timor, Egypt, El Salvador, Equatorial Guinea, Eritrea, Fiji, Greece, Guatemala, Guinea, Guyana, Honduras, Iceland, India, Indonesia, Iran, Jamaica, Kazakhstan, Kenya, Kyrgyzstan, Lesotho, Liechtenstein, Madagascar, Mauritius, Mexico, Montenegro, Myanmar, Namibia, Nicaragua, Niger, Nigeria, North Korea, Norway, Panama, Papua New Guinea, Paraguay, Philippines, Republic of the Congo, Romania, Russia, Saint Vincent and the Grenadines, Serbia, Singapore, Slovakia, Solomon Islands, South Africa, Spain, Sri Lanka, Sudan, Suriname, Swaziland, Syria, Tanzania, Uruguay, Uzbekistan, Vietnam, Zambia and Zimbabwe.
The 74 countries that abstained from voting were Afghanistan, Andorra, Armenia, Australia, Austria, Bahamas, Bahrain, Bangladesh, Barbados, Belgium, Belize, Benin, Bhutan, Bulgaria, Burkina Faso, Cameroon, Canada, Colombia, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Ghana, Grenada, Haiti, Hungary, Ireland, Israel, Italy, Japan, Jordan, Latvia, Lebanon, Lithuania, Luxembourg, Macedonia, Malaysia, Malta, Moldova, Monaco, Mongolia, Morocco, Nepal, the Netherlands, New Zealand, Oman, Pakistan, Peru, Poland, Portugal, Qatar, Saint Lucia, Samoa, San Marino, Saudi Arabia, Senegal, Sierra Leone, Slovenia, South Korea, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Uganda, Ukraine, United Arab Emirates, United Kingdom, Vanuatu, and Yemen.
Representatives of 35 countries were absent during the vote, namely Bosnia and Herzegovina, Burundi, Cape Verde, Central African Republic, Chad, Comoros, Côte d'Ivoire, Ecuador, Ethiopia, Gabon, Gambia, Guinea Bissau, Iraq, Kiribati, Kuwait, Laos, Libya, Malawi, Maldives, Mali, Mauritania, Mozambique, Rwanda, Saint Kitts and Nevis, São Tomé and Príncipe, Seychelles, Somalia, Tajikistan, Tonga, Tunisia, Turkey, Turkmenistan, Tuvalu and Venezuela. Liberia voted against the resolution, but the vote wasn't included due to technical reasons.
Attacks on the border posts of Kosovo raised fears of a separation of Northern Kosovo and subsequent merger with Serbia. Russian diplomat Alexander Botsan-Kharchenko, who took part in the negotiations on the status of Kosovo, said such partition was inevitable:
A factual division of Kosovo to a northern, Serbian part and a southern, Albanian one, will take place as a consequence of the illegal declaration of independence.
Under Secretary for Political Affairs Nicholas Burns, in response to the suggestion that Kosovo be partitioned, said "We absolutely oppose the partition of Kosovo," and that the "great majority of countries around the world are not going to stand for that. In response to the seizure of railways in Northern Kosovo and formation of Serbian offices to serve as part of a parallel government Kosovo's Prime minister stated that they would "not tolerate any parallel institution on Kosovo's territory" and would assert their authority over all of Kosovo. The UN's Special Representative in Kosovo said the "international community has made it very clear that no partition of Kosovo will be acceptable.
Ivan Eland a Senior Fellow at the Independent Institute suggested such "a partition within a partition" would prevent a "Serbia-Kosovo War" and provides the "best chance" of Kosovo having a long-term stable relationship with Serbia. Chairman of the Serb Municipalities of Kosovo Alliance Marko Jakšić dismissed the talk of partition and said the action of Serbs in Kosovo is to protest the Kosovo declaration. Oliver Ivanović a Kosovo Serb leader, said he was against Kosovo's partition because "most Serbs live south of the Ibar and their position would become unsustainable".
A Reuters analysis suggeted that Kosovo may be divided along ethnic lines similar to Bosnia-Herzegovina. James Lyon of the International Crisis Group thinktank was quoted as saying "The Republika Srpska (Bosnian Serb Republic) style is acceptable for Serbia, but within the confines that it (Kosovo) is still part of Serbia. Pieter Feith, the European Union's special representative in Kosovo, and the International Civilian Representative for Kosovo said no plans are under discussion to carve out a canton or grant any other autonomy to Serbs living in the north of Kosovo. He told the Pristina, Kosovo, daily Koha Ditore, "It is quite clear that the privileged relations between the Serbs here (in Kosovo) and Belgrade are in the spheres of education, healthcare and religious objects," adding that "the government in Pristina has to be respected.
On March 22, 2008 Serbia's Minister for Kosovo, Slobodan Samardzic said he had submitted a proposal to the United Nations Mission which would create "the functional separation of Serbs and Albanians" within Kosovo. Serbia's Foreign Minister Vuk Jeremic said implementing such a proposal was necessary to avoid violent conflict. Yevgeny Primakov, Chairman of the Russian Chamber of Commerce and former prime minister under Boris Yeltsin, said “the best solution now would be if the Serbs (could) move from the southern parts… to the north, which is closer to Serbia, and to then join Serbia.
Prime Minister Vojislav Kostunica declared in an interview with a local television station in Jagodina that a "functional separation" of Kosovo was inevitable. A Kosovo Serb ally of Kostunica, Marko Jaksic, said Kosovo Serbs would form their own assembly following local elections considering the plan for the "functional division" of Kosovo. He argued that the Kosovo Assembly was dominated by "Albanian puppets" who would not work in the interest of the Serb minority. The mayor of Mitrovica condemned the formation of a parallel municipal assembly in North Mitrovica by Serbs on June 6, 2008 following the election, saying the institution was illegal as well as the elections. Serbian parties also agreed to form a parliament for Kosovo Serbs including 45 delegates, 43 from the local assemblies and two seats reserved for Romani and Muslims. Slobodan Samardžić announced that the Kosovo Serb assembly would be formed on June 28th. He said the body would be representative not executive. Pieter Feith said it would be "regrettable if another set of parallel institutions" were formed in Kosovo and added "the state of Kosovo must rule in its entire territory". On June 23, 2008 NATO Secretary General Jaap de Hoop Scheffer said "any form of partition is not an option" in Kosovo.
Samardzic said in an interview that the UN had accepted a Serb proposal on Kosovo which included a partnership with UNMIK that would effectively give it rights to run vital services. Areas identified as key were police, customs, justice, control of the Serbia-Kosovo border, transport and telecoms, and protection of Serbia's cultural heritage. He said it was included in a package on reconfiguring UNMIK. According to some reports the UN will give way to EULEX in Albanian areas, but retain control over police in Serb-inhabited areas and set up local and district courts serving minority Serbs. On June 12 UN Secretary-General Ban Ki-Moon, in a report to the U.N. Security Council, said he plans to give more authority to the EU over police, courts and other official duties in Kosovo with EULEX under the UN umbrella. Argon Bajrami, editor in chief of the Kosovo daily Koha Ditore, said the proposal would legal the "so-called 'soft partition'" saying, "We will see the U.N. taking care of Serbs, and the EU of Albanians.
Mayor of Mitrovica, Bajram Rexhepi, who is also a former prime minister of Kosovo claimed Serbian interior ministry forces were operating in North Kosovo. The mayor urged security authorities to insure no parallel structures exist in Kosovo. He added that though provocation is being avoided their restraint is limited.
Serbian President Boris Tadic on September 30, 2008 said he would consider partitioning Kosovo if all other options were exhausted. Former Foreign Minister for Serbia and Montenegro, Goran Svilanović, applauded the suggestion saying "Finally this is a realistic approach coming from Serbia. Finally, after several years, there is a room to discuss. After his comments aroused controversy in the media Tadic reiterated that he was suggesting this as a possibility only if all other options were exhausted. Kosovo's parliamentary speaker, Jakup Krasniqi, condemned any suggestion of paritioning saying, "All of those who aim to divide Kosovo, I want to say, it will end in nothing. Serbs lost their right to Kosovo with the unjust war against the Albanian majority.
In its declaration of independence, Kosovo claimed that it was a special case:
The Unrepresented Nations and Peoples Organisation said that recognition of Kosovo would "redefine and clarify key concepts of international law." It said:
Experts agree that the declaration of independence for Kosovo will set a precedent and world leaders are equally aware of the precarious position they face when determining whether to recognise Kosovo’s independence. For regions in similar conditions, Kosovo's independence represents new hope for the future of their own potential statehood.
In a statement issued February 19th the U.S. State Department argued every territorial conflict is unique. It said Kosovo's unilateral independence cannot be used by other states to resolve disputes.
Russian President Vladimir Putin said, "Our position is extremely clear. Any resolution on Kosovo should be approved by both sides. It is also clear that any resolution on Kosovo will set a precedent in international practice." Analysts take this as meaning Russia would come out for the independence of de-facto independent breakway regions in the Former Soviet Union.
UN Secretary-General Ban Ki-Moon in an interview for Interfax news agency said "Each situation needs to be examined based on its unique circumstances," and said Kosovo was a "highly distinctive situation" because of the intervention of the international community. At the same time he emphasised that recognition is left up to UN Member States and is not decided by the UN Secretariat or the Secretary-General.
According to a poll of Bosnian Serbs taken by the Banja Luka-based Partner agency before Kosovo's declaration, 77% would support a referendum being called on Republika Srpska's independence from Bosnia and Herzegovina. The Prime Minister of Republika Srpska Milorad Dodik, citing popular demand, suggested that a referendum on the Serb entity's independence could be held if Kosovo declares its independence. However, Dodik denied accusations that there were already ballots being printed for such a referendum on independence.
Since Kosovo's declaration of independence Bosnian Serb nationalists have called for Dodik to fulfill his promises and call a referendum. Dodik has since said he will only call a referendum if Srpska's autonomy is threatened. Despite this Bosnian Serb lawmakers passed a resolution on Thursday February 21st calling for a referendum on independence if a majority of the UN members (97 out of 192), especially members of the European Union, recognise Kosovo's declaration of independence. After the resolution was passed the U.S. cut aid to the SNSD and the resolution was condemned by the European Union. The Peace Implementation Council (PIC) overseeing Bosnia and Herzegovina said the country's entities have no right to secede. The High Representative for Bosnia and Herzegovina, Miroslav Lajcak said Srpska has "absolutely no right" to secede and that he would use his Bonn Powers "if there are threats to peace and stability" or the Dayton peace agreement.
In an interview for a Novi Sad daily, Dodik said if most countries recognise Kosovo's self-proclaimed independence, this would legitimise the right to secession and added "we do not see a single reason why we should not be granted the right to self-determination, the right envisaged in international conventions.
A non–governmental organisation called 'The Choice is Ours' is calling for a protest demanding the independence of the Bosnian Serb entity. The group issued a statement saying, “If Albanians in Kosovo, where they are an ethnic majority can do it, then we, the Serbs, as the constitutional nation in RS can follow suit”. The organisation said it expected thousands of people at the rally who would sign a petition for the referendum, which will then be handed over to the Bosnian Serb Parliament. However, a date for the rally has not yet been set. Miroslav Lajcak reacting to the statement said that if Srpska was to leave the state of Bosnia "it would be a violation of the Dayton agreement and that those who advocate such move should be aware of the consequences.”
Immediately following Kosovo's declaration of independence Russian officials appeared to soften their position with Boris Gryzlov saying only that Moscow should “reshape its relations with self-proclaimed republics” which according to news reports could mean lifting the economic embargo on the regions. On March 6, 2008 Russia's Foreign Ministry announced it had lifted sanctions on Abkhazia and called on other CIS member states to do the same. Russia denied the event had any connection to Kosovo, but Georgian parliament speaker Nino Burjanadze said she believed the move was part of Russia's response to Kosovo's declaration and signals an attempt to "annex" Abkhazia. Shalva Natelashvili, leader of the Labor Party of Georgia, said Abkhazia would be "finally separated from Georgia" and cited the lifting of sanctions as the first sign. Swedish Foreign Minister Carl Bildt, raised similar concerns about the dropping of trade restrictions saying, "That could look like a de facto annexation and that would be a matter of great concern if it were the case." Eduard Kokoity, the President of South Ossetia's breakaway republic, talking about recognition said, "Some countries will recognise our republics [South Ossetia and Abkhazia]. I cannot rule out that some of them may do so later this year. Russia, however, will not necessarily be the first to recognise our independence. Georgia, which claims South Ossetia and Abkhazia as its territory based on UN Resolutions, has warned that such recognition would amount to a declaration of war (see also United Nations resolutions on Abkhazia). The U.S. State Department has urged for countries not to make statements which could prevent the peaceful settlement of Abkhazia and South Ossetia's status. They also called for all countries to reiterate their support for Georgia's territorial integrity and its sovereignty within the borders defined by the UN Security Council.
Armenia's Deputy Parliament Speaker Vahan Hovhannisyan has said Kosovo's independence will influence the settlement of the dispute over Nagorno-Karabakh. Foreign Minister Vardan Oskanyan declared at the UN General Assembly session in October of 2007 that the Armenian side “does not understand and cannot accept the reverse logic that Kosovo was given independence and that another nation cannot obtain self-determination. Before being elected president, Armenian prime-minister Serzh Sargsyan said Kosovo was not a precedent for Karabakh. He underlined that Nagorno-Karabakh has been independent for the past 17 years.
Following a skirmish between Armenian military forces in Nagorno-Karabakh and Azerbaijan forces which left 4 Azeri and 12 Armenian soldiers dead, Azerbaijan said it was sparked by international recognition of Kosovo. US State Department Spokesman Tom Casey rejected the comparison stating "Kosovo is not a precedent and should [not] be seen as a precedent for any other place out there in the world. It certainly isn't a precedent for Nagorno-Karabakh.
South Ossetia, Abkhazia, and Transistria have all submitted formal requests for recognition of their independence to Russia, among other countries, and international organisations citing Kosovo as a precedent. South Ossetia's appeal was approved at a joint session of the breakaway republic's parliament and the parliament of North Ossetia a Russia autonomous republic. Russia's Duma called a session for March 13 to discuss the issue of recognition in respect to the unrecognised republics in the Former Soviet Union. However, Nagorno-Karabakh was not included in the agenda for the Duma. When asked about the appeal for recognition U.S. Secretary of State Condoleezza Rice dismissed it and said, “we’ve been very clear that Kosovo is sui generis and that that is because of the special circumstances out of which the breakup of Yugoslavia came. The special circumstances of the aggression of the Milosevic forces against Kosovars, particularly Albanian Kosovars, and it’s a special circumstance.” Slovenian Foreign Minister Dimitrij Rupel said the European Union was concerned by what it considered moves by Russia to recognise Abkhazia. External Relations Commissioner Benita Ferrero-Waldner said, there was "a growing preoccupation and anxiety that Russia may be paving the way for recognition of Abkhazia," and stated the EU's support for Georgia's territorial integrity.
The Duma Committee for CIS on March 13th, following a hearing on the unrecognised republics recommended an upgrading of relations with Abkhazia, Transnistria, and South Ossetia including the possibility of recognition. Other recommendations included or reported are the establishment of diplomatic missions in the regions with the foreign ministry to decide whether they are consulates or another type of mission, a removal of import duties on goods created by businesses with Russian shareholders in the regions, and increased humanitarian and economic assistance for Russian passport holders in the regions. Alexei Ostrovsky, chairman of the lower house's committee on former Soviet affairs said at the parliamentary hearing, "The world community should understand that from now on the resolution of conflicts in the ex-Soviet area cannot be seen in any other context from that of Kosovo." Participation of the breakaway republics in international organisations and forums was also mentioned in a press release before the hearings. The Nezavisimaya Gazeta daily described the hearing as "the launch of a procedure of recognition." The committee recommendations are set to be put before a vote a week after the hearing. Russian Deputy Foreign Minister Grigory Karasin said the ministry would "look carefully at all the recommendations" but that Russian policy remained unchanged.
Ozdil Nami a senior Turkish Cypriot official told the Turkish Daily News, "When diplomatic efforts are exhausted other alternatives are put on the table. We clearly see this in Kosovo where diplomacy proved futile and other formulas are floating around. This will certainly have an impact on Cyprus." Nami suggests the resolution of Kosovo may be applied to Northern Cyprus well. According to Nami, "Everyone sees 2008 as the last window of opportunity for a solution to the Cyprus problem." He claims Cyprus is being warned that "other alternatives could be on the agenda" if there is no resolution. Turkish Cypriot leader Mehmet Ali Talat has rejected this connection saying "We do not see a direct link between the situation in Kosovo and the Cyprus Problem. These problems have come up through different conditions.
Member of Palestinian negotiating team Yasser Abed Rabbo said if talks with Israel continue to falter, Palestinians should unilaterally declare independence. In reference to Kosovo, he said that "we deserve independence even before Kosovo, and we ask for the backing of the United States and the European Union for our independence."
The former U.S. Ambassador to the U.N. John Bolton, former Secretary of State Lawrence Eagleburger and former Assistant Defense Secretary Peter Rodman have warned that Western recognition of Kosovo independence would create "an avoidable confrontation with Russia" and "turn what is now a relatively small problem into a large one.
On February 1, 2008 President Saakashvili described the Kosovo issue as a major challenge for Georgian diplomacy.
On March 8, 2008, Serbian Prime Minister Vojislav Kostunica dissolved his government (except to perform caretaker functions) until new elections could be held, principally in reaction to Western support of Kosovo's independence. The next elections are expected to revolve primarily around the questions of European Union membership and Kosovo's recently declared sovereignty.
Prime Minister Vojislav Kostunica has said Serbia would not join the EU without Kosovo, though other members of the Serbian government have disagreed with his position. According to Polish paper Dziennik Jacek Saryusz-Wolski, the chairman of the EU parliament's Committee on Foreign Affairs, during a visit to Belgrade would "ask Serbs which of the two scenarios they will choose - isolation in a region that will in the next few years belong to the European Union or speedy integration.