Matter of Law, Question of Policy: Kosovo's Current and Future Status under International Law

I. INTRODUCTION The collapse of communism signified the transition to a new world order and a new balance of power in areas formerly controlled by Moscow. In these areas, the transition opened a path towards national self-assertion and reversion to historical roots, the memory of which Soviet internationalism and cultural conformism had sought to eradicate. Nations that had previously coexisted under the guise of communist comradeship swiftly brought forth competing claims to land, cultural symbols, and historical lineage. In the "powder keg of Europe," the Balkans, the sparks of nationalism triggered armed conflicts: four wars have ravaged the Balkan Peninsula since 1991.1 The last of these wars, the one over Kosovo, ended in 1999. The ensuing peace nonetheless has not necessarily brought hope of a final resolution to the area's underlying problems. In fact, the high potential for further conflict has forced organizations such as the UN to extend protection to certain populations that claim self-determination, without, however, creating independent states that could subsequently clash anew with neighboring hostile populations.2 This approach found prominent application in the province of Kosovo, which is currently under UN interim administrative control. II. THE UN IN Kosovo: THE LEGAL PROBLEM This Development initially explores the current status of the Kosovar province under international law and suggests that the legal justification for the UN Interim Administration in Kosovo rests on questionable grounds. Nonetheless, the weak legal justifications for the current UN presence may reflect a delicate political solution to a complex problem. As the second part of this Development demonstrates, unequivocal UN support for a final solution that would be more consistent with international law could introduce instability in an already volatile area.3 The open question as to the source of the UN's authority to effectively govern Kosovo is of current significance, mainly for two reasons. First, it muddles the starting point of negotiation regarding the final status of the province. Serbs and Albanians have renewed their efforts to compromise, but exactly how much say each side will have in the final solution is unclear.4 Negotiations are currently taking place under pressure from the EU, which is eager to stabilize the area hoping to include it in the Union, and from the United States, which shares European security concerns and is in need of an exit strategy.5 Second, the degree of UN involvement in Kosovo suggests that the organization will have an active role in shaping the territory's final status. The absence of solid legal ground for the UN presence could undermine the legitimacy and sustainability of any UN recommendation regarding that status. This Development concludes that absent drastic changes in the Balkans that would alleviate security concerns, a final resolution is not forthcoming.6 III. HISTORICAL BACKGROUND Beginning after World War II, Marshal Josip Broz Tito's regime provided Kosovo with a certain amount of autonomy, as part of measures aimed at preserving and strengthening the cohesion of the nascent Yugoslav state. Kosovo had a predominantly Albanian population, whose original aspiration was to join Albania or to achieve some form of independence.7 Granting Kosovo local self-government, therefore, was a way to abate Albanian separatism. This self-government, however, was effectively dismantled in 1990 by Slobodan Milosevic's Serbian nationalist regime.8 This policy change towards Kosovo occurred in part because Milosevic's government rallied popular support on a Serb nationalist platform. Serbs considered and still consider Kosovo "the cradle of the medieval kingdom, the Serbian 'Jerusalem,'" and abhor the prospect of full Albanian control of the territory.9 On the other hand, Albanians have been a majority in Kosovo for many years, and have an equally strong claim to the land and its history. …