Intermediate Sovereignty As A Basis For Resolving The Kosovo Crisis

Foreword

The International Crisis Group has decided to publish the report, prepared by the Public International Law and Policy Group, as a contribution to the debate on the future status of Kosovo. The views expressed in the paper are those of the authors and do not necessarily represent the position of the International Crisis Group.

While the recent agreements brokered by US envoy Richard Holbrooke between the West and Yugoslavia may, if respected, lead to a short-term lull in violence against civilians in Kosovo, they do not provide the basis for a lasting peace. Preventing a renewal of conflict will require a political settlement which satisfies the main demands of the majority Albanian population and at the same time protects the rights of the minority Serbs. Given the apparent overwhelming support for independence among Kosovo's Albanian population, such a settlement is unlikely to be sustainable unless it at least holds out the prospect of real constitutional change.

Western governments have been reluctant to admit discussion of independence for Kosovo as a policy option for fear that such discussion might open a "Pandora's Box" of problems by encouraging other minority populations in the region to press for independence. Of particular concern is the prospect of Macedonia's ethnic Albanians - who make up almost a quarter of that country's population - launching a bid for sovereignty based on the precedent of an independent Kosovo. Pessimists predict an ensuing nightmare scenario in which a new wave of disintegration and ethnic segregation takes hold, sparking new local wars and threatening the fragile peace in Bosnia where Bosnian Serb leaders might be tempted to abandon the Dayton Agreement and announce the secession of Republika Srpska from Bosnia.

The legal analysis contained in this report is significant because it sets out the legal arguments that differentiate the Kosovo Albanians' claim to independence from those of other minority groups in the region. By reference to the constitution of the former Yugoslavia, recognized principles of international law and legal precedent expressed in decisions of the International Court of Justice and various international treaties, the authors argue that independence for Kosovo would not necessarily create a dangerous precedent for the rest of the region.

International Crisis Group

Brussels, 09 November 1998

Executive Summary

To promote a resolution of the Kosovo crisis, the international community should propose arrangements granting the people of Kosovo the status of intermediate sovereignty. The status of intermediate sovereignty would entail arrangements whereby the people of Kosovo would be entitled to exercise specified sovereign rights, while retaining specified links to the self-proclaimed Federal Republic of Yugoslavia (FRY) and committing to respect fundamental principles of international law, for a period of three to five years. After this period, Kosovo would be entitled, subject to an internationally conducted referendum within Kosovo, to seek recognition from the international community.

During the interim period, the people of Kosovo would exercise complete legislative, executive and judicial control over their internal affairs relating to economic development, internal security, education, taxation, extraction and processing of natural resources, transportation, health care, media and news broadcasting, cultural development, and the protection of minority rights. The people of Kosovo would also be entitled to begin to conduct their own international affairs and appoint international representatives.

In exchange for the exercise of these rights, Kosovo would be required to implement specific guarantees that it would protect the rights of all minority populations within its territory, respect the territorial integrity of neighboring states such as Macedonia and Albania, renounce any intention of political or territorial association with Albania, and accept its borders as confirmed by the 1974 Yugoslav Constitution. Kosovo representatives would also participate in the government of the Federal Republic of Yugoslavia to the degree necessary to ensure an effective transition to its own international status.

To ensure the protection of the rights of the inhabitants of Kosovo, both Albanian and Serbian, international monitors from the OSCE and EU, as well as independent non-governmental organizations, would be entitled to establish monitoring missions and would be accorded complete and unrestricted access to Kosovo and be required to publicly report their findings. In addition to monitoring the protection of human rights, these organizations would certify the complete withdrawal from Kosovo within six months of all Yugoslav and Republic of Serbia military, paramilitary and police forces, as well as any other external forces.

At the end of this interim period the criteria for recognition of Kosovo would include the traditional legal criteria of territory, population, government and capacity to conduct international relations, as well as the additional political criteria of whether it had fulfilled its commitment to protect the rights of all minority populations within its territory, respected the territorial integrity of Macedonia and Albania, rejected any political or territorial association with Albania, and maintained the status of its borders. Once recognized by the international community, Kosovo would remain bound by these commitments, and would revoke its participation in the Yugoslav federal government.

This approach to a peaceful resolution of the Kosovo crisis is based on principles of international law, which provide that all self-identified groups with a coherent identity and connection to a defined territory are entitled to collectively determine their political destiny in a democratic fashion, and to be free from systematic persecution. In cases where self-identified groups are effectively denied their right to democratic self-government and are consequently subjected to gross violations of their human rights, they are entitled to seek their own international status in order to ensure the protection of those rights.

The case for intermediate sovereignty is further supported by: 1) the legal and factual similarity between Kosovo and the other Republics of the former Yugoslavia which were deemed by the international community to be entitled to international recognition; 2) the legal precedent of earned recognition established by the international community in recognizing Slovenia, Croatia, Bosnia-Herzegovina and Macedonia; 3) the fact that Yugoslavia has dissolved, and the international community has rejected Serbia/Montenegro's claim to continue its international legal personality; 4) the historical fact that Kosovo, while legitimately part of Yugoslavia, has never been legitimately incorporated into Serbia; 5) the fact that the people of Kosovo have been subjected to ethnic aggression; and 6) recent precedent set by the Russian/Chechen Accords and the Northern Ireland Peace Agreement.

To promote a resolution of the Kosovo crisis, the international community should propose arrangements granting the people of Kosovo the status of intermediate sovereignty.

Statement of Proposed Policy Approach of "Intermediate Sovereignty"

The status of intermediate sovereignty would entail arrangements whereby the people of Kosovo would initially be entitled to exercise specified sovereign rights, while retaining specified links to the self-proclaimed Federal Republic of Yugoslavia (FRY) and committing to respect fundamental principles of international law, for a period of three to five years. The borders of Kosovo both during and after this period would be those as existed in 1974 when Kosovo's status as an autonomous province of the Socialist Federal Republic of Yugoslavia (SFRY) within the Republic of Serbia was confirmed by the 1974 Constitution. During the three to five year period, the people of Kosovo would exercise complete legislative, executive and judicial control over their internal affairs relating to economic development, internal security, education, taxation, extraction and processing of natural resources, transportation, health care, media and news broadcasting, cultural development, and the protection of minority rights.

During this three to five year period, the people of Kosovo would be entitled to begin to conduct their own international affairs and appoint international representatives. At this time, Kosovo would be required to implement specific guarantees that it would protect the rights of all minority populations within its territory (and, towards that end, make concrete progress towards an independent national judiciary with interim international participation), respect the territorial integrity of neighboring states such as Macedonia and Albania, renounce any intention of political or territorial association with Albania, and accept its borders as confirmed by the 1974 Yugoslav Constitution. Kosovo representatives would also participate in the government of the FRY to the degree necessary to ensure an effective transition to an international status for Kosovo.

To ensure the protection of the rights of the inhabitants of Kosovo, both Albanian and Serbian, international monitors from the OSCE and EU, as well as independent non-governmental organizations, would be entitled to establish monitoring missions and would be accorded complete and unrestricted access to Kosovo and be required to publicly report their findings. In addition to monitoring the protection of human rights, these organizations would certify the complete withdrawal from Kosovo within six months of all Yugoslav and Republic of Serbia military, paramilitary and police forces, as well as any other external forces.

At the end of this period, Kosovo would be entitled, subject to an internationally conducted referendum within Kosovo, to seek recognition from the international community. The criteria for recognition of Kosovo would include the traditional legal criteria of territory, population, government and capacity to conduct international relations, as well as the additional political criteria of whether it had fulfilled its commitment to protect the rights of all minority populations within its territory, respected the territorial integrity of Macedonia and Albania, rejected any political or territorial association with Albania, and maintained the status of its borders. Once recognized by the international community, Kosovo would remain bound by these commitments, and would revoke its participation in the Yugoslav federal government.

The Legal Basis for a Policy Approach of Intermediate Sovereignty for Kosovo

According to the general principles of international law, all self-identified groups with a coherent identity and connection to a defined territory are entitled to collectively determine their political destiny in a democratic fashion, and to be free from systematic persecution. In

cases where self-identified groups are effectively denied their right to democratic self-government and are consequently subjected to gross violations of their human rights, international law does not require that they remain a constituent territorial unit of the oppressive state.

To preserve the balance between the principle of territorial integrity and the fact that territorial units may under some circumstances legitimately disassociate from their parent state, international law and recent state practice indicate that as a precondition to the legitimate attainment of international status, a self-identified group seeking to disassociate itself from the parent state must affirmatively demonstrate that it has been denied the ability to exercise its right of democratic self-government and that its people have been denied basic human rights. Recent state practice also indicates that a territorial unit seeking to attain international status must respect the principle of uti possidetis (i.e., "as you possess") and should articulate a legitimate basis for its disassociation from the parent state.

Although the Kosovo Albanians constitute a self-identified group with a territorial connection, they have been systematically denied their right to collectively engage in democratic self-government. This denial has been accompanied by increasing levels of systematic persecution, state-sponsored oppression and discrimination, and denials of basic human rights. The Kosovo Albanians are thus not required to remain within the political structure of the self-proclaimed FRY, and may legitimately claim an international status of their own, subject to the principle of uti possidetis and the articulation of a legitimate basis for its disassociation from the self-proclaimed FRY.

In the case of the dissolution of the former SFRY, the republics of Slovenia, Croatia, Bosnia-Herzegovina and Macedonia were deemed entitled to disassociate from Yugoslavia on the basis that they had been denied the proper exercise of their right of democratic self-government, they possessed clearly defined borders within the umbrella state, and in some cases they had been subject to ethnic aggression and crimes against humanity committed by the paramilitary and military forces of the central government. Notably, the international community did not consider that entities such as the Republika Srpska, although entitled to a right of political autonomy, were entitled to disassociate from Bosnia-Herzegovina as they had not been denied the proper exercise of their political rights, and they did not posses the status of an internal republic with historically defined borders.

In acknowledging the independence of Slovenia, Croatia, Bosnia-Herzegovina and Macedonia, the international community, and in particular the European Community, established a number of preconditions, such that their attainment of international status would be exercised consistent with the principles of uti possidetis and respect for territorial integrity.

Most important, the international community recognized these states within the borders that they possessed as constituent territorial units of the former Yugoslavia. The international community also required these states to hold a referendum confirming the wishes of the general public to seek independence, and to demonstrate their commitment to respect fundamental principles of international law, including those relating to the protection of minority rights, democratic processes of governance and economic organization, and the protection of human rights. In certain instances, the international community further required the new states to make commitments to respect the territorial integrity of and renounce any territorial claims against specific neighboring states.

Like the republics of Slovenia, Croatia, Bosnia-Herzegovina and Macedonia, Kosovo is entitled to attain international status on the basis that its population has been denied the proper exercise of its right to collectively determine its political fate in a democratic fashion by being excluded from the political process within the self-proclaimed FRY. Moreover, the Kosovo Albanians have been denied the ability to enjoy basic human rights such as access to education and health care and freedom from torture and arbitrary imprisonment. In addition, the entity of Kosovo possesses clearly defined internal borders, and prior to the initiation of the dissolution of Yugoslavia, possessed almost exactly the same rights and obligations as the other republics of the former Yugoslavia. And, like many of the other republics, Kosovo now has become the victim of ethnic aggression and crimes against humanity perpetrated by forces loyal to the Serbian regime.

The legal basis for intermediate sovereignty is enhanced by the dissolution of the Yugoslavia, since the United States and other major powers have explicitly declined to recognize the self-proclaimed FRY as the continuity of the Yugoslavia, and many of these states have further refused to recognize the FRY as a state or to grant it membership in international organizations. Under these circumstances Kosovo occupies a very similar situation to the other republics of the Yugoslavia which attained international status.

As with the other republics of the former Yugoslavia, the international community may properly recognize Kosovo within its current territorial boundaries (consistent with the doctrine of uti possidetis) following its demonstration of commitment to fundamental precepts of contemporary international law, including respect for human rights, in particular those of the Serb minority in Kosovo, and respect for the territorial integrity of Macedonia and other neighboring states. Moreover, in addition to the precedents set for conditional recognition by the cases of Slovenia, Croatia, Bosnia-Herzegovina and Macedonia, precedents for interim arrangements have been established by the Northern Ireland Peace Agreement.

Historical Background

On December 1, 1918, following the end of World War I, Kosovo became a part of The Kingdom of Serbs, Croats and Slovenes, which in 1929 became Yugoslavia. In 1919, in response to a denial of their basic human rights, including the right to education in the Albanian language, an estimated 10,000 rebels took up arms against the central government of the Kingdom. The suppression of this revolt involved the commission of widespread atrocities, the arming of Serbian civilians, and the relocation of women and children to internment camps in central Serbia. Subsequent to this revolution, the central government accelerated a colonization program, promising sizable tracts of land and exemption from taxes for ethnic Serbians willing to relocate to Kosovo.

In 1929, Yugoslavia was divided into nine governorships, with the territory of Kosovo being dispersed amongst three governorships. From that time until World War II, much of the land held by Kosovo Albanians was confiscated and transferred to the state. From 1933 the government of Yugoslavia also conducted consultations with the government of Turkey

regarding the prospects for expelling between 200,000 and 300,000 Kosovo Albanians to Turkey. In 1938 an agreement was reached with Turkey to expel as many as 400,000 Kosovo Albanians. This agreement was frustrated by the initiation of World War II.

During World War II, Yugoslavia was occupied by Axis forces, with Kosovo being partitioned between Bulgaria, Albania (governed by Italy), and Germany. Following the end of the war, the state of Yugoslavia was reconstituted, with the 1946 Yugoslav constitution providing that Kosovo would be an Autonomous Region within the Republic of Serbia. Although the 1946 constitution did not address in detail the rights and obligations of the Autonomous Region of Kosovo, the Serb Republic constitution provided that Kosovo would direct its own economic and cultural development and that it would be responsible for protecting the rights of its citizens. At this time, the Yugoslav government relaxed the restrictions on the use of the Albanian language and reduced the intensity of the colonization program, which had been halted by the war - during which time many of the Serbian colonists had been forced to return to Serbian territory.

In 1963, Yugoslavia adopted a new constitution, which promoted Kosovo to an Autonomous Province, but effectively decreased some of its federal rights. Yet, in 1968 the constitution was amended to provide Autonomous Provinces the status of "socio-political communities" which was the same term used to describe the other Republics making up Yugoslavia. The Autonomous Provinces were also provided the right to engage in all activities associated with Republic level status, except for those tasks which were of concern to the Republic of Serbia as a whole. In early 1969, the Kosovo Albanians were permitted to fly the Albanian flag as their "national emblem," and later that year the University of Prishtina was established.

Throughout the 1970's the Kosovo Albanians increased their participation in the economic sector, political bureaucracy, and local police forces, with Kosovo Albanians holding two-thirds of the membership in the local League of Communists, and three-fourths of the membership in the local police and security forces.

In 1974 Yugoslavia adopted yet another constitution, which provided that the Autonomous Province of Kosovo, as well as the Autonomous Province of Vojvodina, would be entitled to a status nearly equivalent to that of the other six republics of Yugoslavia. In particular, Kosovo was entitled to participate in the federal government, with its own representative on the rotating federal Presidency and with elected Parliamentarians in the federal Parliament.

Moreover, Kosovo adopted its own constitution, as authorized by for in the Yugoslav Constitution of 1974.

In the early 1980's, after Tito's death, the Kosovo Serbians began to agitate for a return to the earlier political system, in which the Kosovo Serbians held greater privilege and power. In 1985, the Serbian Academy of Sciences drafted a "Memorandum," which essentially called for a revocation of the rights accorded Kosovo under the 1974 constitution, and the creation of a greater Serbia. In 1987, Slobodan Milosevic, then a deputy to the President of the Serbian Party, traveled to Kosovo to hear demands by Kosovo Serbians. In response to an orchestrated riot by Serbian nationalists, Mr. Milosevic delivered an extemporaneous speech calling for the "defense of the sacred rights of the Serbs." In late 1987, Mr. Milosevic used the growing political unrest in Kosovo as a platform for assuming the presidency of the Serbian League of Communists.

In early 1988 the Serbian assembly adopted amendments to the Serbian constitution which removed Kosovo's control over the Kosovan police force, criminal and civil courts, civil defense, and economic, social and education policy. Moreover, the amendments effectively prohibited the use of Albanian as an official language in Kosovo. To force these amendments through the Kosovo parliament as required by the Federal constitution, members of the Serbian security forces surrounded the Kosovo Parliament building with tanks and armored personnel carriers, and inserted special police and communist party functionaries amongst the Kosovo delegates. These actions were met by mass demonstrations of the Kosovo Albanian population and resulted in the declaration of a state of emergency in Kosovo by the Serbian regime.

In March and June of 1990 the Serbian assembly issued a series of decrees meant to entice Serbs to return to Kosovo, while suppressing the rights of the Kosovo Albanians. The decrees for instance created new "Serb only" municipalities, forbade the sale of property to Albanians by departing Serbs, closed the Albanian language newspaper, closed the Kosovo Academy of Sciences, and dismissed thousands of state employees. In response, on July 2, 1990 the Albanian members of the Kosovo Assembly declared Kosovo "an equal and independent entity within the framework of the Yugoslav federation." The Serbian regime responded by dissolving the Kosovo Assembly and the government. And finally, in late 1990 the Serbian regime expelled 80,000 Kosovo Albanians from state employment.

The members of the dissolved Albanian assembly responded by holding a secret meeting and creating a constitutional law for the Republic of Kosovo, and then holding a referendum on the question of whether Kosovo should be declared a sovereign and independent republic. According to Kosovo Albanian sources, 87 percent of eligible voters participated in the vote, with 99 percent voting in favor of independence. Subsequently, using the same procedure of underground voting, the Kosovo Albanians held an election on May 24, 1992, whereby they elected a new assembly and government. More recently in the spring of 1998, the Kosovo Albanians held a second round of parliamentary elections as required by their constitutional law.

From 1989 until the present, the Kosovo Albanians have been denied not only the ability to participate in the federal government, but also the ability to participate in the local formal political structures responsible for determining the political fate of Kosovo. Moreover, the Kosovo Albanians have been subjected to a systematic denial of their basic human rights, which includes a policy of arbitrary arrests, police violence, detention incommunicado, torture, summary imprisonment and economic marginalization. Most recently, the Kosovo Albanians have become the victims of Serbian ethnic aggression, which has resulted in the displacement of over 350,000 civilians, the deliberate destruction of over 18,000 homes, the siege of almost half of the population centers, and the looming prospects of mass starvation as the winter approaches.

In addition to politically and economically marginalizing the Kosovo Albanians, the Serbian regime also began a process of marginalizing the other Yugoslav republics by blocking the rotation of the federal Presidency and removing non-serbs from key federal positions. In response, Slovenia and Croatia declared independence in June 1991. The Serbian regime retaliated by ordering the Yugoslav National Army and associated paramilitary forces to occupy strategic positions in Slovenia and Croatia. The ensuing conflict resulted in the commission of mass atrocities against civilians in Croatia. Prompted by the fear of facing the same fate as the Kosovo Albanians, the republics of Bosnia-Herzegovina and Macedonia declared independence as well. Slovenia and Croatia were recognized as independent states in early 1992, while Bosnia-Herzegovina was recognized later in the year, and Macedonia was recognized in late 1993. The Serbian regime responded to these declarations of independence by instigating a war of ethnic aggr

ession, which relied extensively on terrorizing civilians to accomplish its objects of ethnic separation. The intensity and barbarity of these acts eventually led to the creation of an international tribunal to prosecute those responsible for war crimes and crimes against humanity.

After failing to prevent the secession of Slovenia, Croatia, Bosnia-Herzegovina and Macedonia, Serbia and Montenegro declared the formation of a joint state, the Federal Republic of Yugoslavia, which it claimed continued the international legal personality of Yugoslavia. The European Community and United States denied Serbia/Montenegro's claim to be the continuation of Yugoslavia and refused to recognize it as a state.

The Entitlement of the People of Kosovo to Attain a Degree of International Status in order to Ensure their Right to Collectively Determine their Political Destiny and to be Free from Systematic Persecution

Although international law and state practice strongly support the principle of a state's territorial integrity, in certain circumstances territorial units of a state have legitimately disassociated themselves from the parent state and created or resumed their own international status. Recent examples include the separation of the Baltic states from the former Soviet Union, the subsequent dissolution of the Soviet Union and the attainment of statehood by all of its former republics, the separation of Czechoslovakia into the Czech Republic and Slovakia, and the dissolution of the SFRY leading to statehood for Slovenia, Croatia, Bosnia and Herzegovina, and Macedonia.

As proclaimed by former Secretary General of the United Nations, Boutros-Ghali:

"sovereignty, territorial integrity and independence of states within the established international system, and the principle of self-determination of peoples, both of great value and importance, must not be permitted to work against each other in the period ahead."

The Denial of the Kosovo Albanian's Right to Collectively Determine their Political Fate through Democratic Means and to be Free from Systematic Persecution as a Precondition for the Creation of an Independent Status for Kosovo

To preserve the balance between the principle of territorial integrity and the fact that territorial units may under some circumstances legitimately disassociate from their parent state, international law and recent state practice indicate that the people of a territorial unit seeking disassociation from the predecessor state must have been denied the ability to exercise their right of self-determination, and must respect the principle of uti possidetis.

Recent state practice also indicates that a territorial unit seeking to attain international status should articulate a legitimate basis for its secession.

Recent developments in international law support the proposition that if a self-identified people with a territorial nexus are denied their right to collectively determine their political fate through democratic means and to be free from systematic persecution, they will inevitably become entitled to attain international status in order to protect these rights. As a result, noted scholars have argued that, "a minority within a state, especially if it occupies discrete territory, may have a right to secede - roughly analogous to a decolonization right - if it is persistently and egregiously denied political and social equality as well as the opportunity to retain its cultural identity." Similarly, scholars have declared more bluntly that "severe deprivations of human rights often leave no alternative to territorial separation."

In fact, international law is affirmatively agnostic as to whether certain groups of people have or do not have a right to attain international status. It is thus more appropriate to consider the denial of the right of self-determination at least as a precondition to the attainment of international status. As articulated by Ved Nanda, for a group of people to seek international status, "there must be little hope that any action short of separation would satisfy the sub-group's desire for effective participation in the [democratic] process." The greater the degree of a group's exclusion from the democratic process the more valid the option of providing that group with international status becomes.

The Denial of Self-Determination as a Precondition to the Attainment of International Status

The denial of the exercise of the right of democratic self-government as a precondition to the creation of international status is supported most strongly by the United Nations' 1970 Declaration on Friendly Relations, wherein the General Assembly set out the familiar competing imperative of territorial integrity, but with an important caveat:

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color.

By this act, the General Assembly indicated that states are entitled to invoke the right of territorial integrity so long as they possess "a government representing the whole people belonging to the territory without distinction as to race, creed or color." Where such a government is not present, "peoples" within existing states will be entitled to an unlimited right to self-determination. This reading of the clause is supported by a member of the United States delegation who participated in drafting the Declaration: "a close examination of its text will reward the reader with an affirmation of the applicability of the principle of self-determination to peoples within existing states and the necessity for governments to represent the governed."

More recently, in considering whether Quebec could properly secede from Canada, the Canadian Supreme Court found that,

"a right to secession only arises under the principle of self determination of peoples at international law where 'a people' is governed as part of a colonial empire; where 'a people' is subject to alien subjugation, domination or exploitation; and possibly where 'a people' is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. The Court then went on to declare,

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have the territorial integrity recognized by other states.

As the Court found that the people of Quebec had not been "denied meaningful access to government to pursue their political, economic, cultural and social development, they were not entitled to secede from Canada." Implicitly, however, had the Court found that the people of Quebec were denied any such a right of democratic self-government and respect for human rights, then secession from Canada might have been permissible.

As a government's legitimacy derives from a people's exercise of the right of self-determination and from its conduct in accordance with its obligation to protect and promote the fundamental human rights of all of its people, the question must therefore be asked whether a government has been imposed on people by force, or by an exercise of self-determination.

Before assessing whether the Kosovo Albanians have been denied their right of democratic self government and respect for human rights, it is necessary to establish that these rights affirmatively exist in international law, the exact nature of these rights, and whether the Kosovo Albanians are entitled to these rights.