Topic:
CONSTITUTIONAL SOLUTION FOR KOSOVO
Authors:
Slobodan Vucetic
Serious understanding of the very stratified problem of Kosovo and
Metohija, in decades past and today, among other things means having
in mind the historical fact that Kosovo and Metohija does not have a
long, authentic tradition of autonomy, as may be the case with certain
regions in Spain and Italy. Following the first Balkan war, in which
it was liberated and annexed as a territory without any territorial
or autonomous status, to he Kingdoms of Serbia and Montenegro, Kosovo
becoming a part of Serbia, while Metohija became a part of Montenegro,
the territory was subdivided into smaller administrative units
(regions), while after 1929, it was administratively divided and
joined to three larger regional units (Banovine): Vardarska, Moravska,
and Zetska. It was only in the communist Yugoslavia, that the
so-called Kosmet received autonomous status in 1945. At first it was
known as the autonomous region of Kosmet, then as of 1963, it became
an autonomous province, just like Vojvodina.
The entire latter development of autonomy in Kosovo and Metohija, and
in Vojvodina, followed the logic of constant broadening of the content
and breadth of the autonomy within Serbia, which then developed at the
of the 1960's and beginning of the 1970's into a type of factual
statehood and the acquisition of a quasi-federal status, which was
definitely institutionalized in the Socialist Federal Republic of
Yugoslavia constitution (SFRY) of 1974.
That is when the specific, and to the world unknown, form of an
autonomy was "patented." Although officially parts of Serbia, the
autonomous provinces at the federal level were equals of the republics
as states. In Serbia itself, on the basis of the republican
constitution of 1974, they in fact had a superior position - directly
represented in the organs of Serbia and in the federation, they had
their own constitutions and laws, their courts, including
constitutional and supreme courts. The sovereignty of Serbia as a
republic was thus limited to the area between the two republics.
The culmination of that constitutional absurdity was the fact that the
constitution of Serbia could not be amended without the agreement of
the provincial assemblies, while at the same time, the Serbian
legislature, as that of the state of which the provinces were parts
of, did not have the right to give assent to amendments to provincial
constitutions. All that combined to create a great political,
national, and state crisis and the constitutional amendments of 1989,
as well as the Constitution of 1990, led to the reduction, or rather
suspension of the attributes of statehood for the provinces within
Serbia. In reality, autonomy was more or less limited to the standard
boundaries and status as exist in European states. Unlike the SFRY
constitution of 1974, the 1992 Constitution of the Federal Republic of
Yugoslavia (FRY) does not recognize, that is does not envisage forms
of territorial autonomy, but leaves it up to the constitutions and
laws of the republics to organize their authorities.
I believe to have been fully legitimate, and in keeping with European
and world practices and constitutional solutions, to discontinue the
kind of autonomy, that was actually statehood, and itself a generator
of separatism and secession. Also a fully principled and logical
solution is for the autonomous provinces to be a part of the
territorial organization of Serbia, without also being that of
Yugoslavia. It is a different issue whether in the Serbian
Constitution of 1990, the autonomous status of Kosovo and Metohija,
and Vojvodina has been defined in keeping with European experience. I
believe that certain restrictions in the constitutional status of the
provinces came about as the result of the previously mentioned
negative consequences upon the statehood and sovereignty of Serbia.
These are primarily reflected in restriction of the legislative
function through which they would autonomously deal with the issue,
which, according to the Constitution, are the expression of their
historic, national, religious and cultural uniqueness. The second
important shortcoming, above all, is the relationship of the state of
Serbia in regard to the constitutional possibility of legislating to
entrust one or the other, or both provinces, as the case may be, to
carry out certain of its prerogatives, while maintaining the right to
supervise in that area.
Truth be told, it has not been possible to implement such legislative
solution in Kosovo and Metohija, because since 1989, the Albanians
have been boycotting, not recognizing Serbia as a state, not
participating in the elections, boycotting classes, attempting to
establish their own quasi-state, parallel authority etc. That is why
provincial authorities have not been elected or established at all in
Kosovo and Metohija, so that the autonomy in the practical, real sense
does not exist at all, does not function. In the meantime the
situation has become even more complicated by the dramatic
disintegration of SFRY and the war, while the Kosovo issue not only
has remained unresolved, but rather it has been additionally
complicated and factually internationalized, while inter-ethnic
relations remain on the verge of open, even armed, conflict. In the
meantime the current authorities in Serbia have not demonstrated
enough political and stately wisdom or realism. Namely, in the
meantime although at issue is an open and dramatic political problem,
that the international community insists must be resolved
democratically, the authorities in Serbia have not offered an adequate
political or legal platform for dialog. Of course, it would be
unrealistic to expect that to be the renewal of the concept and status
of the province as it be in 1974. But, it would logical to expect a
platform to be offered as soon as possible, that would be equal to the
best European models for resolving the status and rights of national
minorities in view of political, national and cultural rights, such as
those in Italy or Spain.
The fundamental and functionally best solution would be to regionalize
Serbia, based on the criteria of large territorial and economic units,
such as, for example, Kosovo and Metohija. The regions would exercise
major functions in various aspects of social, economic and cultural
life in keeping with their specific needs. Such a solution would call
for a bicameral republican legislature - composed of a chamber
representing the people and a chamber representing the regions. Also,
regional assemblies of a marked ethnically diversified composition
would be bicameral, composed of a chamber representing the people and
a national chamber. The national chamber would be composed on parity
criteria: half of its members would be Albanians, while the other half
would include Serbs, Montenegrins, Turks, Roma and others. Decisions
would be made on the basis of harmonization between both chambers.
However, the realism of political relations in Kosovo and Metohija,
would probably be difficult to include in a regional organization of
Serbia.
That is why a solution should be sought in the autonomous status of
the province in keeping with European standards. That option would
call for a bicameral provincial assembly. In the case of Kosovo and
Metohija that would mean the provincial chamber would be made up of
representatives of all the citizens based on the principle "one
citizen -- one vote", while the other, the national chamber, would be
established on a parity basis, so that half of the representatives
would be Albanians, while the other half would include representatives
of the Serbs, Montenegrins and members of the other ethnic groups who
live in Kosovo and Metohija (Turks, Roma, Muslims, etc.). The two
assembly chambers would be equal in the decision-making process that
is decisions would be valid only if both chambers adopt the same text
bill. This would include an especially developed mechanism for
harmonizing differences in stands and decisions of the two chambers,
with the possibility of activating some form of mediation on the part
of the authorities of FR of Yugoslavia.
This would be a logical and inclusive solution because according to
the Constitution of FR Yugoslavia -- the federal state recognizes and
guarantees for the freedoms and rights of Man and citizen as
recognized by international law (Article 7), including the rights of
national minorities in keeping with international law (Article 11).
Also, FR Yugoslavia is the guarantor that "the universally accepted
rules of international law are the inclusive part of the internal
legal movement" (Article 16).
Considering the very tense inter-ethnic relations and dramatic
political situation in Kosovo and Metohija, the state authorities in
Serbia should, as soon as possible, conceptualize and offer a
political and legal platform for the resolution of its status in
keeping with the model of European experiences and solutions. Such a
platform should be offered for the inspection and opinion of pertinent
international institutions and adequate contact and dialog should be
realized with such regarding the matter. This, all the more so, since
an adequate political and legal resolution of the issue of Kosovo and
Metohija, is not just the condition for the elementary political
stability of Kosovo and Metohija, Serbia, FR Yugoslavia, or even the
Balkans, but rather the condition for the political and economic
return of FR Yugoslavia to Europe and the world.
(The author is a Justice of the Constitutional Court of Serbia)
Dr. Esat Stavileqi
The starting basis for a discussion of the constitutional and
political status of Kosovo is that it does not represent the entirety
of the constitutional and political status of the Albanian people in
the former Yugoslavia, but without a doubt it represents its most
important factor, considering that Kosovo is populated by just over
two million Albanians, representing more than 90 percent of the local
population.
It would seem to us that first place should be devoted to the
demographic-national and territorial reality of the Albanian people
in Kosovo. The second significant moment is the is represented by the
historic, geographic, national-structural and political individuality
of Kosovo. Taking that in to consideration, one should recall Dardania
who lived in ancient times, the Kosovo Vilaet of the Ottoman Empire,
the formation of the so called people's authorities during World War
Two, as well as the position of Kosovo in the former multi-ethnic
community of Yugoslavia as set out in the Constitution of 1974, which
Serbia unconstitutionally annulled by amending its Constitution (1989)
and through a number of unconstitutional legal acts.
The third moment is represented by the important historical fact that
Kosovo had not been covered by the second session of Tito's
constitutional body, the Yugoslav Antifascist Council of People's
Liberation (AVNOJ) in 1943, because the issue of Kosovo had been left
until after the war, to be resolved through self-determination of the
people of Kosovo -- as quoted by historic sources.
Having these three and other factors in mind, which shall be mentioned
later, I deduce the logical historical-political and legal conclusion
why Kosovo is and should be an independent state, for which I had
opted at the very beginning as the only real and just solution in
relation to all the other options on offer, but which, according to my
profound belief, can only postpone the resolution of the Kosovo issue
making it a constant political ballast for the Balkans, especially
Serbia and the self proclaimed Yugoslavia.
At the very beginning of the constitutional-political review of the
status of Kosovo, I would like to recall that during the time of the
Albanian National Rebirth at the end of the 19th Century and the
beginning of the 20th Century, "the Kosovo issue" did not exist as a
"separate issue" , considering that there was the "Albanian issue" --
the joint issue of all Albanians. The "Kosovo issue" was created by
the disintegration of the Albanian ethnic territory as sanctioned by
the London conference (1913) and again by the Versailles conference
(1919), when more than a half of the Albanian people and territory
were left outside the new Albanian state and remained "occupied by
neighboring Balkan states, most in the Serb state."
Thus, the Kosovo issue cannot be viewed differently than the issue
manifested as the effort for national identity, as the demand for
national equality or as the aspiration for national unity. All these
variants are tied with a single thread, the will of the Albanian
people in Kosovo "to be masters of their own political fate."
And if today the consciousness of Europe and the consciousness of
states were on the level of recognizing the free will of peoples and
continuity of accepting the ethnic principle, this issue could be
easily resolved. Thus, having in mind the only such possible fair and
just solutions -- a sovereign and independent Kosovo republic I
believe to be a realistic political option -- of importance for the
current political balance in the Balkans. The initial notes on the
constitutional-political status of Kosovo cannot avoid the issue of
conflicts concerning Kosovo in the inter-ethnic political sphere.
All the more so, the current and previous repression by the Serb
regime over the Albanians I view as a a very rough expression of the
conflicts caused by "Serb possessiveness and greater state pretensions
towards Kosovo," which is without any ethnic basis. Serb
possessiveness leads towards, "towards the basic negation of the
natural right of the Kosovo population, that is the Albanian people
for self-determination...,"which, as is generally known, was laid down
in the institutional-political decisions of the Constitutional
Declaration of the Assembly of Kosovo on July 2, 1990, in the
Constitution of the republic of Kosovo of Sep. 7, 1990, and especially
in the Resolution on the sovereignty and independence of Kosovo of
Oct. 18, 1991.
Therefore, relations between Serbia and Kosovo should be viewed as
relations between two separate territorial-ethnic units, completely
ethnically different, which as such cannot be under one ethnic
authority. On the other hand, one should bear in mind another
significant legally valid argument, which is that Kosovo, "was never
an integral part of Serbia under the sovereignty of that federal
unit," under any constitution. On the contrary, numerous
constitutional solutions describe Kosovo as one of the axes of the
former Yugoslav federation.
I will mention some of those solutions to fortify my view of the
inconsistency of the Badinter arbitration commission towards those
solutions when the status of Kosovo is concerned, not to advocate for
the return of such status in some form of the contemporary federal
union, which was entered by the Slav peoples themselves (Slovenia,
Croatia, Bosnia-Herzegovina, and Macedonia), but rather to argument
political-legal facts in favor of Kosovo as a sovereign and
independent state.
First I would like to recall Articles 1 and 2 of Constitution of the
former Yugoslavia of 1974, according to which Kosovo had been an
integral-constitutional part of the Federation; Article 5 of that
Constitution according to which Kosovo had its own territory and its
boundaries which could not be changed without its approval; Article
244 point 2, according to which Kosovo participated in the joint
realization of the interests of the Federation; the pertinent articles
according to which Kosovo was represented in the Parliament,
Presidency, Cabinet, Federal court, federal Constitutional court... and
to conclude with the resolutions from articles 398,399, and 402, point
2, according to which Kosovo had an equal position with the former
republics in respect to issues of amendments and changes to the
constitution of the former Yugoslavia.
Having said this, I must ask that if the Constitution of 1974 had been
the criteria of Yugoslavia's establishment, why could it also not be
the criteria for its disintegration. An expert analysis of of one of
these solutions, one must conclude that the recommendation for the
international community and its subjects is to approach with great
responsibility and most seriously, but above all realistically, the
issue of independence for Kosovo. It should also be considered that
recognizing the independence of Kosovo would not necessitate any
changes to borders. Kosovo had its inter-federal boundaries outlined
in the Constitution of the Yugoslav federation of 1974. Accordingly
this is not an issue of violating the "Helsinki principles on
borders." It could rather be a case of side stepping those principles,
which could be the topic of a separate debate.
Accordingly Kosovo, like all the other former Yugoslav republics, is
an issue of outer self-determination, meaning that it represents an
issue of unconstitutional occupation of its territory by Serbia.
Finally, the issue of Kosovo is not an issue of secession, considering
that it, "is not secession from an existing state entity, but became
sovereign after the disintegration of the former Yugoslavia."
Therefore, following the disintegration of the former Yugoslavia, the
issue of Kosovo should be viewed in a different institutional,
political and international light.
I am aware of the current international state in the world and the
overall political situation in Kosovo, as I am aware why the
international community is preoccupied primarily with human rights
violations of the Albanians in Kosovo and indications for a more just
resolution of the Kosovo issue through Albanian-Serb dialog, which
would prevent greater conflicts in the Balkans and wider afield. But I
would like to recall a thought from Russell that, "the preservation
of peace by subjecting a nation, cannot be called peace." I am also
aware that some mid way solutions will not take Kosovo of the schedule
of the international community.
Therefore, advocating for the option of a sovereign and independent
Kosovo, I will venture to mention ten arguments in that favor, but
because of the limited space, without elaborating on each in turn:
- First, the ethnic structure of Kosovo, which speaks in favor of the
demographic domination of the Albanians as a territorial-demographic
and national reality of the Albanian people in Kosovo - on the level
of the Balkans;
- Second, the political will of the Albanian people in Kosovo,
expressed through democratic institutional mechanisms;
- Third, the dual right of the Albanian people to self-determination:
first as the right to national self-determination and as the right to
the self-determination of the population on a compact individualized
territory;
- Fourth, Kosovo as an integral constituent element of the former
Yugoslav Federation;
- Fifth, the disintegration of the former Yugoslav Federation and the
fact that Kosovo, not in a single gesture, acted in the formation of
the Serb-Montenegrin Federation, that is the so-called Federal
Republic of Yugoslavia;
- Sixth, the creation of a balance between the ethnic character of the
territory and ethnic character of the authorities in Kosovo, which is
now under classic occupation by Serbia;
- Seventh, the historic, geographic and structural national and
political individuality of Kosovo;
- Eighth, the natural right of the Albanian people in Kosovo to
independence
- Ninth, the social-economic and political basis for the independence
of Kosovo; and
- Tenth, principles and social-political justification for the
independent status of Kosovo.
Thus, the Albanians in Kosovo, a sovereign and independent Kosovo,
basically consider a compromise solution, very important for the
creation of political stability in the Balkans. That is why the
international community is obliged to seriously, taking into
consideration all relevant facts, approach the fair and just
resolution of the Kosovo issue. It will not fulfill this obligation
advocating solely "in words." Its most significant contribution would
be to view the Kosovo issue as a first class issue which seeks not
only a quick, but also a just resolution.
Resolving the status of Kosovo and its recognition will depend on the
credibility of the arguments. That is more reason to hold an
international conference devoted to Kosovo. I am under the impression
that there would be room at such a conference to broadly and in depth
present the multitude of facts in favor of granting the freely
expressed will of the Albanian population in Kosovo. Anyhow, there is
no resolution of the Kosovo issue without respecting respecting the
will of the majority population in Kosovo. Any other solution would
represent only violence which could for some time more maintain the
state of conflicts and uncertainty for the Kosovo population and for
the region in general.
The Albanians in Kosovo are going through one of the most difficult
temptations in their history which, unfortunately, has not favored
them. In their regions the Albanians are the indigenous people, which
means that they have been living there since the earliest of times as
the direct dissidents of the Illyrians. It is on this land that they
created their history and cultural heritage, shaped their entity and
built their national identity. This is where they defended their
national sol and this is where their future. Therefore, Kosovo is not,
nor does it represent "the cradle of the Serb people, or the Serb
state," which, among other things is proven by the ethnic reality of
Kosovo with he absolute demographic majority of the albanian people in
Kosovo.
The fact that the Albanians are forced to fulfill their elementary
civic needs within the framework of the installed Serb authorities in
Kosovo, at the same time should not be understood as the
constitutional-legal recognition of those authorities.
(The author is a university professor)
