Selbstbestimmung, Sezession und Anerkennung: Völkerrechtliche Aspekte der Unabhängigkeit des Kosovo (I)

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In June 1999, the UN Security Council (SC) suspended Serbia's sovereignty over its southern province of Kosovo and "internationalized" the determination of its future status by referring the matter to a political process facilitated by international actors. When the status process was finally launched in October 2005, the general understanding (shared at the time by the Contact Group, which includes Russia) was that, once it has started, the process cannot be blocked and has to be brought to a conclusion. While the Council's preference for a consensual outcome was beyond doubt, Resolution 1244 (1999) did not give any indication as to which course of action should be taken if a final settlement could not be based on an agreement between the parties concerned. It does not seem reasonable, however, to hold that – in the absence of a consensual solution – the SC intended to rule out any alternative settlement of the status issue. From the perspective of general international law, Kosovo's unilateral declaration of independence can be explained in terms of the notion of "remedial secession"; i.e. the right of a distinct group subjected to systematic repression and exclusion to secede from the state responsible for such policies, provided the group is resident within a definable territory where it forms a majority of the population and all reasonable means to remedy the situation within the borders of the parent state are exhausted. Arguably, Kosovo-Albanians have not forfeited their remedial right to secede by Serbia's belated offer of substantial autonomy in the course of the UN-led status talks. In line with the basic tenets of the principle of self-determination, it must eventually be left to the people concerned to accept such an offer or – pointing to the lost faith in the promises and institutions of the parent state – to reject it. This seems all the more appropriate when the parent state has continued to display a general lack of bona fide efforts to win back the trust of the people in question (see e.g. Belgrade's persistent support for parallel political structures in the North of Kosovo and the exclusion of Kosovo-Albanians from participation in the referendum on Serbia's 2006 constitution). Implicitly, Resolution 1244 itself confirms this approach. While Serbia's sovereignty and territorial integrity is affirmed in its preamble, the resolution also repeatedly refers to the principles of the Rambouillet accords of March 1999. The Rambouillet accords, in turn, contained a clause according to which a final solution of Kosovo's status should be based, inter alia, on the will of the people concerned (a position later supported by the Contact Group). With Resolution 1244, the SC has thus laid the basis for a political process within which Serbia's claim to territorial integrity was qualified from the outset by the need to have due regard to the wishes of the people affected by the disastrous policies of the Milošević regime. Moreover, if one agrees that the Kosovo-Albanians can legitimately claim a remedial right to external self-determination as a result of the events of the 1990s, it seems difficult to maintain that the SC could have permanently stripped this group from any possibility to actually realize this right. Its wide-ranging powers notwithstanding, the SC is ultimately bound by the principles of the UN Charter and the peremptory norms of international law, of which the right of peoples to self-determination forms an integral part.