Rocznik_2014-215

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32 Tomasz Stępniewski, Tomasz Olejarz tive solution is worked out, Kosovo should have a wide autonomy and self-governance while preserving a permanent territorial integrity of the Federal Republic of Yugoslavia. As for the territorial integrity of Serbia, the relevant declarations are limited to the introductory part of the preamble and do not occur in the operational part of the document. In other words, in its technical part the UN Resolution 1244 is also “silent,” which has led to a number of interpretative speculations as to the legality and validity of the acknowledgement of the Republic of Kosovo as a full-fledged state entity 9 . 3. The principle of sovereignty and the problem of the “precedent” of Kosovo As Roman Kwiecień notices, the lack of reference to the principle of sovereignty in the Declaration of Independence of Kosovo is significant. Presumably, it was an intentional act. In fact, the legal justification of the secession of Kosovo on the strength of the principle of the autonomy of nations seems nowadays to be a risky measure which is doomed to failure. There are two reasons for that. Firstly, the process of establishing Kosovo was not an inner process and as such it was not a self-constitution, but was incited by international involvement, especially that of the UN (Resolution 1244). The involvement was so significant that the constitution adopted by the Parliament of Kosovo is, in fact, a granted constitution, as the legal system which it introduced in Kosovo had been stipulated in the so-called Ahtisaari Plan 10 (Annex 1, Art.1.3). Secondly, because of the lack of the home 9 Cf. Ch. Borgen, Is Kosovo a Precedent Secession, Self-Determination and Conflict Resolution... 10 On the strength of a decision of the UN, its Special Envoy, Martii Ahtisaari, was obliged to prepare a comprehensive proposal of solving the status of Kosovo as a basis for further international negotiations. His proposal was submitted (respectively on 26 Jan and 02 Feb 2007) to the parties of the so-called Contact Group. Russia excluded the possibility of accepting it without a Serbian agreement. The Serbian parliament rejected the project. On March 26 th , 2007, the UN submitted the final version of the project, stating the final status of Kosovo, to the Security Council with the recommendation of accepting it and a Report of the Special Envoy. The plan stipulated an extensive self-governance of Kosovo including the right to enter into treaty relations and apply for the membership of international organizations as well as the right to decide its state symbols, such as the flag, the currency and the army. Although the plan did not use the term “independence,” its author formed his opinion saying that “the only credible option is the Rocznik Instytutu Europy Środkowo-Wschodniej • Rok 12 (2014) • Zeszyt 3
Is Kosovo a Precedent Legal and International Dilemmas... 33 state’s (the Republic of Serbia’s) agreement to a secession of part of its territory. It is worth noticing, that the authors of the Declaration of Independence of Kosovo were conscious of the legal controversy of the act admitting in the preambule that the case of “Kosovo is a special case arising from Yugoslavia’s non-consensual breakup and is not a precedent for any other situations” 11 . In the subject of the so-called Ahtisaari Plan, it should be noticed that the Declaration of Independence of Kosovo emphasizes the respect for the principle of integrity of the existing countries. It declares that “Kosovo will maintain its international borders as determined in Annex VIII to the Ahtisaari Plan and will fully respect the autonomy and territorial integrity of all its neighbours”. In Annex VIII, we can read that “3.2 The territory of Kosovo shall be defined by the frontiers of the Socialist Autonomous Province of Kosovo within the Socialist Federal Republic of Yugoslavia as these frontiers stood on 31 December 1988 (…)” 12 . The Ahtisaari Plan stipulated that Kosovo would obtain the status of an entity recognized by international law 13 , controlled by the EU and NATO, yet it did not contain any reference to Kosovo’s independence. It was only supported by the authorities of Kosovo, most EU countries and the USA, while Serbia and Russia were against it. The subsequent negotiations between Serbia and the contemporary authorities of Kosovo, in cooperation with the representatives of the EU, the Russian Federation and the USA, were not successful. On 17 th February 2008, the National Assembly of Kosovo proclaimed the unilateral Declaration of Independence 14 . The act, nota bene of a very controversial nature, initiated the real process of the secession of Kosovo from the Republic of Serbia. independence of Kosovo, initially under the supervision of the international community (…)” because “Kosovo is a unique case requiring unique solutions. It does not set a precedent in relation to other unsolved conflicts”. Cf. R. Kwiecień, Prawnomiędzynarodowe konsekwencje jednostronnej deklaracji..., p. 117. 11 R. Kwiecień, Prawnomiędzynarodowe konsekwencje jednostronnej.., p. 12. 12 P. Daranowski, Uznanie niepodległości Kosowa…, p. 12. 13 E. Dynia, Uznanie Kosowa w świetle prawa międzynarodowego..., p. 20. 14 Kosovo Declaration of Independence, http://www.assembly-kosova.org/cid=2,100,45 [access: 01.08. 2010]. Rocznik Instytutu Europy Środkowo-Wschodniej • Rok 12 (2014) • Zeszyt 3
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Anna Masłoń-Oracz Recommendations
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About the Authors Artur Adamczyk -
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