Thanks a lot for a very comprehensive and well-documented point in favour of your case.

Let me just state some of my answers to your stand:
- I totally agree that the situation with the Hungarian minority in Romania is totally different than Kosovo and the so-called “fear” is just an inflated political trick to stir more controversies in Romanian politics, which is definitely the last issue we should be concerned about
- on EULEX – you’re right! my mistake
- on the legal argument, i was referring mostly whether it’s legal to apply the principle of self-determination (which, in this case, is not) – internal rights for the albanians in kosovo were fully granted (so there was internal self-determination), which means that the case for external self-determination (what the proclamation of independence states) is null
- also on the legal argument, when it comes to succession, as you well know, there’s rarely a clean state approach… most of the time, as it happened with USSR & the CIS republics, the answer is somewhere on between… as for the succession between FRY and Serbia, you’re entering some shaky ground… in 2004, in the ICJ decision FRY v NATO, it’s true that 8 out of ICJ’s 15 judges said that Serbia&Montenegro was not a member of NATO in 1999, but they offered no reasoning for it, and the decision remains very controversial (the case itself was rejected on merits) – in any case, the issue at hand here is not succession, but self-determination
- skipping legal stuff (which are not the core here), i agree with what you’re saying in the second part of the argumentation… politically, the only way out is independence right now… a couple of years ago conciliation and autonomy would have functioned, but i am afraid things have gone too far now.. unfortunately, i am less convinced than you that Kosovo will be better off independent.. right now, “independence” actually means implementing the Ahtisaari plans, which – I am afraid – will turn Kosovo in an EU protectorate, thus prolonging the limbo for a bit

Nice debate anyway! Thanks!

Regarding the legal argument. It is not at all true that Kosova’s independence is illegal. When we speak about international law in this case, we should keep in mind two documents: Resolution 1244 of the UNSC and the Rambouillet Accords. Neither of these documents preclude the Independence of Kosova. In fact, Rambouillet requires specifically that the final settlement be based “on the will of the people”.
R 1244 recognized a nominal sovereignty over Kosova to Yugoslavia, but only for the interim period after the war and until the final status was determined. It was nominal because the same resolution defined that all matters of administration, foreign policy, security etc were the responsibility of the International Community (UNMIK, KFOR etc) and of Kosova Govt (PISG), with Yugoslavia being treated practically as a foreign country with no say whatsoever over any field of the administration. Please note that the sovereignty was assigned to Yugoslavia not Serbia. That is a very subtle but crucial point. At the time Yugoslavia was a federation and Serbia was a republic of it. 1244 treats Kosova as a federal unit – as far as the nominal sovereignty is concerned – and not as a part of the republic of Serbia. Kosova had been a federal unit before, as an autonomous province, with all the trappings of the republic but the name, but that was revoked illegally by Slobodan Milosevic in 1989, an event that in effect set the ball rolling for the destruction of Yugoslavia (SFRY) and the secession of Slovenia, Macedonia, Croatia and Bosnia. During Rambouillet negotiations, FRY (the rump Yugoslavia) had insisted very hard that Kosova be recognized in the agreement as a part of the republic of Serbia, but they obviously lost that argument in the war with NATO and R 1244, which considered Kosova as a federal unit.

Now, FRY ceased to exist in 2006, when Montenegro left the federation. It could be argued legally that the dissolution of FRY, removed any obligation from Kosova, as no one had any sovereignty anymore (nominal or otherwise) over the territory. Serbia claims to be the successor state of the FRY, however as far as 1244 goes, the sovereignty was assigned to FRY not Serbia and for a very good reason. UNSC did not amend Res 1244, when FRY died, to transfer its sovereignty over to Serbia. That makes 1244 antiquated and ambiguous at best. The “deed” that Serbia claims to have over Kosova, so to speak, has written on it someone else’s name, and is about as valid today as a treaty binding Serbia to the Ottoman Empire.

Furthermore, legal experts have argued that the Yugoslav sovereignty under 1244, is not even legally binding since it is only mentioned in the preamble, and the UNSC resolution preambles are not legally binding in terms of “We decide, we confirm, we order” etc. This point was also recognized by the Serbian legal expert Prof. Ivo Viskovic.

So, Serbia’s legal argument is very weak. They don’t have any other argument to hold on to Kosova and that’s why they often resort to “historical right”, ie Kosova that used to be part of a certain Serbian empire for sometime in the middle ages etc etc. Well, in that case maybe the entire Balkans should go over to the Byzantine Empire once again.

Regardless, the international community and the Albanian side tried very hard to reach an agreement with Serbia on a final settlement, only to hit a brick wall. We had two years of negotiations, facilitated by the UN special envoy, Mr Ahtisaari, who produced a proposal for the final status, because both sides could not agree on a settlement. Albanians naturally wanted independence, while Serbs couldn’t give more than autonomy, which was in substance even less than what Albanians had under the Tito’s constitution of 1974 that was revoked illegally by Milosevic. Ahtisaari proposed independence, but limited and supervised by the EU mission. The proposal was put in the UNSC and Russia blocked the vote four times threatening a veto. The strategy of Russia and Serbia in this case was to drag the negotiations indefinitely in order to frustrate and incite a revolt among the population in the province against UN mission, so they could eventually benefit from it and send in the Serbian army again. And that’s why they never wanted to reach an agreement, and that’s why UNSC is blocked on the issue and can not perform it’s function. People of Kosova can not live in legal limbo forever, 8 years as it is it’s a long time, the economy bad as it is, is becoming even worse and no one will invest where there is no legal certainty. Serbia wants the territory but it never considered the people who live there as its citizens, nor it cared for them, instead its officials constantly refer to the Kosovars in derogatory terms.

As for the Russians, were they really interested in a solution inside UN, they would put forward their own resolution. Let then UNSC vote in two parallel resolutions, with a guarantee that no one will use the veto, and let the best resolution win by simple majority. See, it couldn’t have been so hard.

@lubos motl… brilliantly put: “they are darlings of the west”

@radu… as i said in the end of my position, despite the illegality of what happened with the recent proclamation of independence, it is the best thing to do given the circumstances; not because it is morally right (because I think moral righteousness is appeasement and democratic accommodation), but because it is practically feasible; and yes, i’ve studied international law and it indeed runs into a brick wall simply because there’s no actor to exert jurisdiction over matters of international law… this is why international law principles we’ve all agreed upon should be, to my mind, respected to the greatest extent possible… this is why i considered “illegal” to equate “wrong” in this case… again, i’m criticizing the mechanism, but not necessarily the outcome (which was the only one left)

@bojan… i’ve also mentioned the wretchedness of Albanian domination and what that has done to the Serbs in the last couple of years.. i never disagreed with you on this one, and you know it. I also agree with what you’re saying that for a very, very long time dialogue between the two parties has been ignored. by both serbs and albanians, not only by “kosovo politicians”. balkan people regard politics as a zero sum game (the all or nothing approach), which obviously has negative consequences

Problem of Kosovo politicians is that they were too much focusing on independence status and not about dialoged between Serbs and Albanians.