Resolution 1244 of the UNSC as the “evaporating mediator” for the status of Kosovo

By: Gentian Doçi

On June 12 of this year, it was 24 years since the Kumanovo Agreement was reached for the withdrawal of troops and all Serbian institutions from the territory of Kosovo. Upon reaching this agreement, Resolution 1244 of the UN Security Council came into force. Resolution 1244 of the SC is among the most well-known and perhaps the most mentioned resolutions for our region and Albanians in general, because it is the resolution that followed the “Kumanova Agreement” for the withdrawal of Yugoslav troops and institutions (at that time) from the territory of Kosovo. Since it was voted as a resolution, there are many hypotheses about what this resolution represents. According to his propaganda, Milosevic considered this resolution as a “victory” over NATO and the preservation of Kosovo within the territory of Serbia, and that with this resolution, the status of Kosovo is already established. This political move of his to deceive his own people is still a famous version in the public opinion of Serbia and the resolution 1244 has already become the main “shield” of the territorial integrity of Serbia. What does resolution 1244 represent? What are the misconceptions about the Security Council and the United Nations?

First, the version that the chair in the United Nations is a “confirmation” that a socio-political entity is a state and if it is not part of the United Nations, it is not a state, is wrong. Switzerland became part of the UN in 2002 and this does not mean that it was not a state before this year. The states themselves are the ones who created this institution called “United Nations” and not the other way around. The states have never gathered at the UN and proposed the initiative for the creation of a new state. The Security Council is not a legislative body and is not concerned with the final determination of the status of states. The most important directive of the Security Council is not sovereignty, international law, territorial integrity, etc. but it is what the name itself says, that is, it deals with security, the security of people, the security of states. UN Resolution 1244 should not be seen as a constitution, but as a method of imposing peace. In one of the points of the preamble of this resolution it is stated that: “Reaffirming the commitment of all member states to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and other states of the region, as defined in the Final Act of Helsinki and annex 2).” In this sentence of the preamble of Resolution 1244 and in the entire resolution, the final status is not established, but the temporary status of Kosovo (which can also be distinguished in the points below). Resolution 1244 deals with the temporary status of Kosovo and what would happen to Kosovo after the withdrawal of the Serbian army, police and paramilitary troops from the territory of Kosovo.

One of the general principles of the G8 foreign ministers in this resolution states: “Establishment of a temporary administration for Kosovo to be established by the UN Security Council to ensure the conditions for a normal and peaceful life for all residents in Kosovo.”

In Annex 2, the word “temporary” is repeated: “A political process towards the establishment of a structure of a temporary political agreement for a substantial self-government for Kosovo, taking into account the accords of Rambouillet”. The most important part that confirms that this Resolution does not establish Kosovo as an “inseparable” part of Serbia is point 11, respectively points “e” and “f”. Point “e” says: “Facilitation of a political process designed to determine the future status of Kosovo, taking into account the Rambouillet Accords (S/1999/648).” In the eighth chapter of the Rambouillet Agreement, point 3 states that three years after this agreement enters into force, an international meeting must take place to establish a mechanism to establish the final status of Kosovo, based on the will of the people.” At this point, the preservation of the territorial integrity of the Federal Republic of Yugoslavia is not mentioned. This resolution also mentions the Rambouillet Agreement, which Milosevic refused to sign, among other things, because of point 3 of chapter 8, in fact it was the reason why the Federal Republic of Yugoslavia was bombed. As we can see, in the end he accepted a good part of the Rambouillet Agreement, but after the bombings. Point “f” states that in the final phase, the supervision of the transfer of authority from the temporary institutions of Kosovo to the institutions established according to a political agreement.

Based on these points that show and confirm that Resolution 1244 deals only with the transitory part of Kosovo. This resolution provides directives on how this transition will take place after NATO troops enter Kosovo, mark the end of violence and terror in Kosovo, the return of refugees to their homes and the establishment of provisional institutions to achieve the consolidation of life and institutions of Kosovo. By this we understand that this resolution is not a “world constitution”. After Kosovo’s declaration of independence on February 17, 2008, Serbia appealed to the International Court of Justice whether the declaration of independence is in harmony with resolution 1244 and the measures adopted therein. That this resolution has a provisional character in terms of its final status is also shown by the court’s response, which states that resolution 1244(1999) clearly establishes a temporary regime; it cannot be taken as establishing a permanent institutional structure in the territory of Kosovo. This resolution mandated UNMIK to later facilitate the negotiated and desired solution for Kosovo. On the next question whether this declaration is in violation of resolution 1244 and the measures taken therein, the Court reiterates the temporary character of this resolution, where it says that resolution 1244 is essentially designed to create a temporary regime, with the aim of channeling the long-term political process to decide its final status. The resolution does not contain any provision that defines the final status of Kosovo or the conditions to achieve it. According to the terms of resolution 1244 (1999), the Security Council did not reserve for itself the final determination of the situation in Kosovo and remained silent on the conditions of how the final status of Kosovo will be achieved. Therefore, Resolution 1244 (1999) does not preclude the issuance of the declaration of independence of 17 February 2008, because the two instruments operate at a different level: unlike resolution 1244 (1999), the declaration of independence is an attempt to definitively determine the status the future of Kosovo, without prejudging the outcome of the negotiation process. Finally, we can see that this resolution served as the “vanishing mediator” for the achievement of Kosovo’s independence. “Evaporating agent” is a term coined by Fredrik Jameson to describe a factor in a historical transition that creates the conditions for change and then “evaporates” once the foundations of that change are laid. Resolution 1244 continues to be in force because it protects the security of the territory of Kosovo, but in terms of its status, this resolution has “evaporated”.