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I vjetėr 1.9.2008, 12:38   1

Shkrim i cituar North Albania's constitutional position in the former Yugoslav Federation

Kosovo's constitutional position in the former Yugoslav Federation
M. Kullashi and B. Pula

Hesitations about the legitimacy of Kosovo’s right to independence are strange in the view of its self-governing status within the former Yugoslavia.

The Kosovo status issue is habitually treated by international diplomatic and political circles outside the historical context of the construction and dissolution of the former Yugoslav federation, with all its weighty consequences for Kosovo’s sovereignty. Keeping to essentials, this expose briefly highlights a number of salient historical facts indicating that the problem of Kosovo’s status was essentially invented by Milošević.

The inevitable starting point is the juridical reality that, by virtue of the constitution of the former Yugoslavia, Kosovo, while nominally not enjoying the status of a fully-fledged republic, nonetheless possessed practically all attributes and functions pertaining to the republics of the Socialist Federal Republic of Yugoslavia (SFRY), subsequently recognized as the latter’s legal successors.

Thus according to both the federal constitution and its own, Kosovo functioned within the Yugoslav federation as an independent and self-governing unit. The political administration of Kosovo consisted of structures wielding autonomous legislative, executive, and judicial powers. The Assembly was the highest legislative body within the territory of Kosovo, and the Constitutional Court of Kosovo the highest judicial authority. Like the other federal units - the six republics and the province of Vojvodina - Kosovo had its own independent judiciary, while executive power rested in the hands of its own government, which controlled its police and territorial defense forces.

In 1989 the regime of Slobodan Milošević, as part of its efforts to destroy the existing Yugoslav constitutional order, abolished the autonomous status of Kosovo - in contravention of the existing Yugoslav constitution - by resorting to a combination of political pressure and use of force in order to absorb Kosovo into Serbia’s legal and political system. At the time of Yugoslavia’s collapse, and in line with similar actions in other federal units, its Assembly declared Kosovo a sovereign entity on 2 July 1990. In September 1990 the Assembly adopted the Constitution of the Republic of Kosovo. In the same month the population reaffirmed its will to independence by way of a referendum.

The fact that Kosovo functioned as an independent entity for nearly five decades, half of that time with full self government, challenges the allegation that the Republic of Kosovo had never been a state entity or that it arose out of nothing. Given its former status as one of Yugoslavia’s eight self-governing territories, Kosovo is neither politically nor legally comparable to such recent secessionist creations as Republika Srpska in Bosnia-Herzegovina and South Ossetia in Georgia.

The problem of Kosovo today arose exclusively as a consequence of the political and military aggression waged against it by the Milošević regime in the late 1980s and early 90s, as part of the latter’s general onslaught against the Yugoslav federation. The refusal of Kosovo’s population to accept their country’s violent integration into Serbia was a legal and legitimate act, by contrast with Milošević’s aggression which - as is widely recognized - formed merely the initial step in his regime’s destruction of the political equilibrium established in the region by the creation of the Yugoslav federation at the end of World War II, and within that federation of the self-governing entity of Kosovo.

In view of these historical, political and constitutional precedents, it is easy to understand the frustration felt by the Kosovar population when faced with the current legal and political reservations against their country’s independence. One of the frequently mentioned caveats - no border changes - contrary to all legal evidence assumes Kosovo to have been an inseparable part of the former Yugoslav republic of Serbia. Certain circles even talk about a possible domino effect, claiming that recognition of Kosovo’s independence would lead to further divisions in the Balkans. Such arguments are frequently voiced also by Serbian parties and governmental circles. But they completely ignore the political context of the wars of the Yugoslav succession, which inevitably came to involve also Kosovo and which motivated Kosovo’s demand for independence.

Faced with the dissolution of the Yugoslav federation, the international community in 1992 recognized Slovenia, Croatia, Bosnia-Herzegovina and Macedonia but not Kosovo, accepting - more by default than through any consideration of the legalities - the fact that at the time of Yugoslavia’s disintegration in 1991 Serbia had already annexed Kosovo. Yet the criteria governing recognition for the constituent units of the former Yugoslavia relied on the Yugoslav constitution on the one hand, on referendums in which the majority of the populations concerned had declared for independence on the other. It is obvious that the same arguments hold true also for Kosovo.

The issue of Kosovo was set aside at the time when the other successor states were recognized, despite the fact that as a federal unit it met all the same criteria as they did: it had its own constitution, government, assembly, bounded territory, all defined and guaranteed by the Yugoslav federal constitution. The legal and constitutional differences between the status of Kosovo and that of the six republics were minor and nonessential, whereas their similarities in terms of competency were crucial. For example, at the all-Yugoslav level Kosovo exercised a right of veto in legal, political and economic decision-making equal to that of other federal units. Moreover, it is well known that the right to adopt and repeal laws defines the sovereignty of a state. Lastly, in the referendum of 1991 - analogous to those held in other federal units - the majority of Kosovo’s population voted for independence.

It is important to recall in this way the legal, constitutional and political status of Kosovo and its people within the former Yugoslav federation, because to do so places the conflict between Serbia and Kosovo over the latter’s status into its proper political context, and refutes any over-simplifying approach that seeks to explain the conflict as an ethnic one between the Albanian and Serb communities. The political conflict over Kosovo, while indeed often manifested through internal ethnic divisions, is in fact essentially a by-product of Belgrade’s policies rather than being rooted in any long-standing intolerance between two rival ethnic communities. Albanians and Serbs in Kosovo have a long history of co-existence, whereas violent confrontations have been episodic and brief. Policies enacted by the Serbian state - and not endogenous factors, or ‘ancient hatreds’ between Albanians and Serbs - have been the main motor of the conflict in Kosovo.

(Kullashi is Professor of Philosophy in Paris, likely to head Kosovo embassy there. Pula is a sociologist in Prishtina. This piece was adopted from a report written in 2005.)

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