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  • 1. COLLEGIUM CIVITAS Department: International Relations Student name: Michael Stapleton Student number: 3385KOSOVO: CONSTRUCTIVE SECESSION OR DESERVED SOVEREIGNTY? BA thesis Written under the supervision of dr Sergiusz Pukas Warsaw, 2011
  • 2. TABLE OF CONTENTSABBREVIATIONS .................................................................................................................... 3INTRODUCTION ...................................................................................................................... 41. CONSTRUCTIVE SECESSION ........................................................................................... 8 1.1 Legality of a Unilateral Declaration .......................................................................... 102. DESERVED SOVEREIGNTY ............................................................................................ 14 2.1 Human Rights Abuses .................................................................................................... 15 2.2 Contravention of Autonomy ........................................................................................... 163. REFORMATIVE SECESSION............................................................................................ 19 3.1 First sphere – the Republic of Kosovo ........................................................................... 20 3.2 Second sphere – Kosovo as a regional affiliate of the Republic of Serbia .................... 20 3.3 Third sphere – Institutions administered by both, the Republic of Kosovo and the Republic of Serbia .................................................................................................... 20CONCLUSION ........................................................................................................................ 22ADDENDUM........................................................................................................................... 25REFERENCES ......................................................................................................................... 27LIST OF ILLUSTRATIONS .................................................................................................... 29 2
  • 3. ABBREVIATIONSCSCE Commission on Security and Cooperation in EuropeECC European Economic CommunityESDP European Security and Defence PolicyEU European UnionEULEX European Rule of Law Commission in KosovoFRY Federal Republic of YugoslaviaFPRY Federal Peoples Republic of YugoslaviaICJ International Court of JusticeICTY International Court for the Former YugoslaviaNATO North Atlantic Treaty OrganizationOSCE Organization for Security and Co-operation in EuropePILPG Public International Law and Policy GroupSFRY Socialist Federal Republic of YugoslaviaUDHR Universal Declaration of Human RightsUN United NationsUNHRC United Nations Human Rights CouncilUNMIK United Nations Interim Administration Mission in KosovoUSA United States of AmericaUNSC United Nations Security CouncilUNSCR 1244 United Nations Security Council Resolution 1244USSR Union of Soviet Socialist Republics 3
  • 4. INTRODUCTION This thesis will focus on two approaches towards the recognition of Kosovosindependence, that of constructive secession and deserved sovereignty. The thesis willcommence with the examination of remedial secession and how it is applicable in the caseof Kosovo from 1989 through to 1999. It will be argued that the application of remedialsecession was an incorrect instrument to use, both from the legal and political standpoint. Deserved sovereignty currently lacks a precise definition, but is understood to entaila process of a sovereign or sovereigns who maintain authority over a region for the purposeof stability, relinquishing authority to a recognized entity while being supervised byan international body or bodies. In order for deserved sovereignty to be evident three criteriamust be present. The first being shared sovereignty where a state, sub-state entityor an international organization, exercise authority over a defined region for a predeterminedtime frame. Second - institution building, where the entity which will ultimately governthe defined territory (with the assistance of an international body) implements publicinstitutions or recreates those already present. The final stage is the acceptance of the stateas a sovereign by the international community, which is determined by the relationshipbetween the state and the sub-state. For cases with a particularly delicate situation such as Kosovo three additional factors arenecessary: firstly, phased sovereignty where the sub-state assumes authority over thefunctioning of the defined region over a predetermined time frame before an earned sovereignstatus is assumed. Secondly, conditional sovereignty where criteria have to be met in stagesforming a process towards sovereign status. Thirdly, constrained sovereignty wherean international body limits the authority of the sovereign through continued military presenceor administrative functions whereby the sovereign is unable to undertake territorialassociation with other state actors. In the contemporary political sphere the solution to a sovereign conflict has beenapproached from either deserved sovereignty, which has been earned through co-operationwith an external entity, or the right to self-determination. It can be argued that deservedsovereignty is a regressive approach as it creates state and sub-state entities and the criteriato attain sovereign status is out of reach for certain applicants. Let then be viewed as a process 4
  • 5. whereby a sub state entity is formed for the purpose of alleviating conflict and guided towardssovereign status with the assistance of the international community so as not to provoke thestate from which secession is sought. For this process to be effective the concerns and interests of both - the state and sub-state -must be taken into account. This adds complexity and fragility to the process culminatingin its uniqueness and requirements needed to achieve a balance. With reference to the caseof Kosovo and the purpose of this thesis, the author suggests an alternative approach, thatof constructive sovereignty. Constructive sovereignty will be defined as the populace being granted sovereigntyby requesting constructive secession and therefore initiating the above mentioned processinvolving the initial three factors of shared sovereignty, institution building and sovereignrecognition. The proposition then is a prototype structure which can serve to avert additionalconflict created as a result of a sub-state entity being granted sovereign status such as the caseof the Republic of Kosovo. The unilateral declaration of independence by Kosovo on the 17 February 2008 wasgreeted with an indifferent response by the international community. To date seventy twoUnited Nations (UN) members have recognized the Republic of Kosovo as a sovereign entity,twenty two of those being European Union (EU) member states and twenty four being NorthAtlantic Treaty Organization (NATO) members. Notable abstainers of recognition are Chinaand Russia who supported Serbia in the Accordance with the International Law of theUnilateral Declaration of Independence in Respect of Kosovo, which was an advisory opinionsought through the International Court of Justice (ICJ) from the UN General Assembly withregards to the 2008 unilateral declaration of independence by Kosovo. The advisory opinionwas delivered on the 22 July 2010 and declared that the unilateral declaration of independenceby Kosovo on the 17 February 2008 did not violate international law, the Constitutionalframework or United Nations Security Council Resolution (UNSCR) 1244. The ICJ providedits advisory opinion only towards the specific nature of the question brought forward. It didnot touch on the validity of sovereign recognition by the UN members at the time and thelegal implications thereof; nor did it analyze the justifications for the recognition by thesemembers. 5
  • 6. Those state actors who recognize the Republic of Kosovo do so under a number of criteria:human rights crimes which were committed under Slobodan Milošević, ten yearsof international administration, Kosovos continued respect towards minority groups and theacceptance of conditional sovereignty. The underlying tone rests upon the notion that Kosovoas an independent state will bring stability to the region. More importantly the caseof Kosovo is unique and is not a benchmark by which non-recognized state entities shouldseek recognition. Furthermore, international law does not grant an entity to seek recognitionunless it is within the context of a protectorate working under the pretext of colonialism.Therefore the unilateral declaration is an ineffective instrument and the case of Kosovo cannotbe taken as a precedent for future cases. The legality of a secessionist state is neither legal nor illegal with regards to internationallaw but can be placed within the framework of legality through the regulation of theinternational community. The implications of granting an entity sovereignty has great impactsupon the legal and political arena both domestically and globally. The internationalimplications are the acceptance into international organizations and involvement in globalsecurity, economic and political spheres; for Kosovo such participation and acceptance arevital for the political stabilization of the territory. Additionally, the acceptance of borders andassociated disputes will further stability and integration. An article in the Sunday Times(Philip, 2008) addresses the issue of recognition by stating that the recognition of Kosovois equal to that of the unilateral declaration and is paramount to the future functioningof the state. Taking into account both the legal and political implications of recognition and thedisputes which have followed Kosovos Unilateral Declaration of Independence, this thesiswill analyze the basis of recognition that has been advocated by states which recognizethe Republic of Kosovo. This analysis will be conducted upon two theoretical approaches that will proposea structure for managing the process of recognition with regards to disputed territorial entities.The first of which will be constructive secession, where the suppression of human rights upona group by the governing authorities is calibrated against possible solutions. The solutionsrange from the lowest integer, being the protection of rights on an individual basis, movingfurther up to the protection of a group and the highest level being that of secession as the only 6
  • 7. justifiable solution. Whereas constructive secession is linked to international intervention,the second approach of deserved sovereignty focuses on institution building. Thisis performed through the international community who initially manage the conflictedterritory in order to build institutions which will ultimately be operated by the sub-state entityseeking secession. This thesis will investigate how similar these two theoretical approaches are to thepractical international response which the case of Kosovo has seen, with particular attentionbeing made to the 2008 Unilateral Declaration of Independence. As a result of the analysis,a theory of reformative secession will be proposed. This is an amalgamation of the twoaforementioned theories. It will serve the purpose of more precisely addressing the situationwhere an oppressed people seek sovereign status through international mechanisms takinginto account international law and politics. The following section of the thesis will further elaborate upon the theory of constructivesecession and its application to the Kosovo situation. Furthermore, the legality of unilateraldeclaration of independence by Kosovo on the 17 February 2008 will be addressed. From this,seven points, which may give a suppressed people the right to a unilateral declaration, willbe elucidated. 7
  • 8. 1. CONSTRUCTIVE SECESSION The grounding principles for constructive secession are based within the fieldof international law and, specifically, that of normative theory - theoretical approach whichaddresses the remedial rights of a group who wish to secede. It can only be brought into forcewhere it has been deemed that the afflicted group will no longer suffer injustice as a resultof secession. The right of the oppressed group is in direct proportion to the number ofafflicted persons within a defined region of a state. Therefore, the use of secession is not to inflict negative ramifications towards thegoverning power but to separate the two entities - state and sub-state - in order to emancipatethe oppressed group, resolve conflict and stabilize the region; additionally, withthe involvement of the international community, to circumvent the right of revolution whichis a direct result of continual injustices towards a specific group. In the case of Kosovo, where the disproportion of belligerents favoured the FederalRepublic of Yugoslavia (FRY) excluding NATO forces, secession is seen as a favourablesolution to that of revolution, when a tyrannical oppressor limits basic human rights.It is upon the issue of human rights that newly declared sovereigns are recognized, as theirdefined territory is the direct result of ethnic cleansing and other crimes against humanity.This is in direct violation of jus cogens1 and the UN Charter which states: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. (Charter of the United Nations and Statute of the International Court of Justice, 1985) The collective stance, taken by the UN members who do not recognize a new state entitywhich has suppressed human rights in order to further its status, serves as a veto. If this is thenaddressed from the opposing view, the recognition of a sub-state entity can be based on thealleviation of the suppressed people, which would result in the group seceding fromthe tyrannical state; herein lays the bases for constructive secession.1 Jus cogens refers to a norm which is widely accepted within the international community and from which no actor may derogate. 8
  • 9. The right to self-determination is inherent in international law and provides an entity withthe ability to embark on a process of secession. The Declaration on principlesof International Law concerning friendly relations and co-operation among statesin accordance with the Charter of the United Nations, adopted during the twenty fifth sessionof the General Assemblys on the 24 October 1970, contains a principle with direct referenceto the subject of self-determination. The Principle of Equal Rights and Self-Determinationof Peoples reads as thus: By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every state has the duty to respect this right in accordance with the provisions of the Charter. (Resolution No. 2625) Reading this above text from the opposing side sheds light to possible action that canbe taken by an oppressed people within a legal framework. A state which does not abideby the Charter and therefore violates the principle of equal rights and does not providethe limited peoples with an option of self-determination invokes the grounds by whichit can be dismembered. This dismemberment can be invoked with regard to the territorialintegrity and or political disunity. Territorial integrity is a pillar which supports the stability ofglobal peace and prosperity and is inherent within the UN Charter. The notion centres on theposition of non-interference within the domestic affairs of a sovereign by other state actors.Additionally, the use of force to suppress a territory and or retard the furtherance of a sub-state entity violates the very principles for which the “free world” stands; however, it mustbe kept in mind that declarations which are political in nature do not oppose this principle.Furthermore, it is only state actors which can be brought into question under international law.Ergo the notion of territorial integrity is only relevant between state actors and is inapplicablewith regards to domestic issues within a state. 9
  • 10. 1.1 Legality of a Unilateral Declaration The dissolution of the USSR and the end of the Cold War saw concepts of constructivesecession gaining prominence within the international community. Territories which sought tofurther their independence looked to the framework of international law in order to legitimizetheir secessionist movement; as movements have been met with opposition so complexitieshave arisen. Legal positivism asserts that secession is a matter within the realm of politics and thereforeis unrelated to any legal jurisdiction. Secession in itself directly challenges the theoriesof International Relations, most notably the realist school of thought, where international lawonly runs in accordance with the power politics of the global arena. Within this thoughtparadigm, a secessionist movement will only achieve its desired result if its goal is alignedwith powerful state actors. Positivists and realists agree that a unilateral declaration does not fall within the rights andnorms of international law; however, if all other options have been exhausted the decisionmay stand. The inquiry of the General Assembly with reference to the unilateral declarationof Kosovo is the first case which the ICJ has had to question the legality of secession withregards to a unilateral declaration. Under Article 65 of the Statute of the ICJ the Courtis vested with the power to grant advisory opinions to the UN; furthermore, under Article 96of the UN Charter the latter is authorized to request such an opinion. Although the Courtstated that the advisory opinion in question was inherently political in nature, it was notoutside the parameters of its jurisdiction. The opinions of the ICJ are not directed towards states. Although, they do indirectlyreference them, it only concerns itself with the Security Council, General Assembly and anyother organ of the UN who are granted authorization under Article 96. Therefore, the motivesof state actors, who vote for a resolution requesting an advisory opinion, are irrelevanttowards the outcome. Additionally, the Court has rejected inferences where no indicationas to the use of the decision and to its legal effect has been given by the General Assemblytherefore granting the Court the power to accept or reject such opinions. 10
  • 11. The Court was requested to provide an opinion on whether the declarationof independence was within the framework of international law; it did not attempt to questionthe consequences of such an opinion. Ergo, it was not concerned with the status of Kosovo asa sovereign state, the result of its opinion or the legal implications regarding the recognitionof the Republic of Kosovo by other state actors. The advisory opinion requested by theGeneral Assembly did not address the issue of a unilateral declaration leading to statehood nordid it specifically mention the right of an entity within a state to unilaterally secede. The Court pointed out that the United Nations Mission in Kosovo (UNMIK) regulation2001/9 enacted the Constitutional Framework, which was executed by Lamberto Zanier theUnited Nations Special Representative for Kosovo. The authorization for such an action wasgranted through UNSCR 1244, the basis of which is derived from the UN Charter. Theoretically speaking, through the Constitutional Framework Kosovo acquiredan international legal character. The Constitutional Framework is a body of law in useby external institutions to administer Kosovo. The Assembly of Kosovo was set-up andgranted legality through the Constitutional Framework. The institution can approve legislationonly within the parameters set and it is subservient solely to the United Nations SpecialRepresentative. Therefore, through the power granted by UNSCR 1244 and the ConstitutionalFramework, the United Nations Special Representative can supervise the institutions set-upthrough UNMIK. At no time before the declaration of independence by the Assemblyof Kosovo on 17 February 2008 had UNSCR 1244 or the Constitutional Framework beenabrogated; furthermore, there is no clause referring to their termination. Additionally, they areinherent within international law and comprise part of the advisory opinion of the ICJ. To expand on the above-mentioned legal instruments, used in the civil and politicaladministration of Kosovo, Resolution 1244 was the basis upon which the international civiland political authority was established. It must be kept in mind that it is an exceptional legalinstrument created in response to the Kosovo Conflict of 1999. The formation of an interiminternational administration was to circumvent humanitarian issues for the purpose of creatinga stable environment enabling the establishment of law and order. In order to ensure stability, local institutions would be set-up under the supervisionof the international administer, creating the self-government of Kosovo and excluding Serbiafrom exercising authority over the territory in question. From this, it was concluded by the ICJ 11
  • 12. that UNSCR 1244 was exceptional in nature and usurped Serbian legal jurisdiction onan interim basis. Regarding the legality of a unilateral declaration under UNSCR 1244, thereis no clear interpretation that denies an entity the right to unilaterally secede. Although thedeclaration adopted on the 17 February 2008 was through representatives of the peopleof Kosovo, it did not act within the Constitutional Framework of the Provisional Institutionsof Self-Government. Additionally, it did not hinder international influence within theadministrative operations of Kosovo as only the Security Council is authorized to do so. One of two options is applicable for the permanent settlement of Kosovo. Firstly, all partiesconcerned must come to a consensus (most notably that of Serbia). The other option is for theContact Group 2 to follow the Guiding Principles 3 , which would authorize the SecurityCouncil to pass a resolution affirming Kosovo’s final status. The language used in UNSCR1244 is ambiguous in nature and, as mentioned before, concerns itself with the interimadministration of Kosovo and not its final status; therefore, a unilateral declaration is nota direction violation of the UNSCR 1244. Constructive secession is not a right that can be acted upon; although, it does offer bothpolitical and normative legality to an oppressed people. This further induces state actorsto support such a movement. A contemporary scholar, Allen Buchanan, advocates a notionof restructuring international law, which should be centered on a Just Cause Theory4. Withinthis paradigm, secession would only be just if it is remedial in nature, which can be identifiedagainst three principles: firstly — basic human rights have been restricted on a large scale;secondly — territory has been unjustly annexed; lastly — a state actor continuously violatesthe autonomy of an interstate whose status has been defined through agreements by bothparties (Buchanan, 2007). Furthermore, with respect to the Principle of Last Resort, all formsof negotiation or agreement must be exhausted. The entity wishing to secede must attest to its representative nature, abide by the ruleof law and the Universal Declaration of Human Rights. Through the Principle of RightIntentions, the action of unilateral declaration should be made in good faith to rectifyoppressive injustices. Additionally, the action must be proportional in nature and the cost2 The Contact Group is comprised of the most influential countries who have interests within the BalkanPeninsula. They are the United States, United Kingdom, France, Germany, Italy and Russia.3 The Guiding Principles were submitted to the Security Council on 7 October 2005. They refer to ten principleswhich must be adhered by all parties concerned regarding the final status of Kosovo in accordance with SecurityCouncil Resolution 1244.4 The Just Cause Theory advocates the secession based upon the oppression of a peoples. 12
  • 13. of secession must be in accordance with the desired outcome. Lastly, the action of secessionmust be made with the intention of recognition by other state actors. In conclusion, thefollowing seven points are the tenets of constructive session and could be invoked to justifythe unilateral movement: 1. The restriction of human rights by a state upon an autonomous entity.5 2. A state actor contravenes an autonomous entity which it legally brought into being. 3. A state actor annexes a territory for which it has no legal grounds to do so. 4. The interference of external entities in order to stabilize the environment and bring about an amicable agreement between both parties. 5. The aforementioned interference requires powerful entities to do so. 6. All forms of settlement must be exhausted by the primary parties involved. 7. Should the autonomous entity be granted final status, it must ensure to uphold minority rights. The following section of the thesis will address the approach of deserved sovereignty in thecase of Kosovo. This approach will be further expanded upon by discussing human rightsabuses and the contravention of autonomy.5 Granted the autonomous entity has been ceded the afore mentioned status through an agreement with the stateactor who restricts human rights. 13
  • 14. 2. DESERVED SOVEREIGNTY The development of any notion regarding Kosovos final status was first commissionedby the Public International Law and Policy Group6 in conjunction with the International CrisisGroup7 in November of 1998. The position was taken in line with the remedial stance in thatthe people of Kosovo would be granted an elevated state of sovereignty due to restrictedhuman rights under Serbian authority. A final status would only be seen in the event of a fullydemocratic self-government respecting human rights and maintaining security within theregion. Under this doctrine, an international presence would be observed over a three to fiveyear period. During this transition stage, Kosovo would assume greater authority over itsfunctions from Serbia so long as it respects the rights of minorities and agrees to borderdelineations. Initially, this approach was termed supervisory statehood but as the directiontends towards final status, this thesis will term it deserved sovereignty. Deserved sovereignty is comprised of three fundamental elements, the first being sharedsovereignty. This element is a method whereby there is a co-existence between the entitywishing to secede and the international community. The basis of this shared approachis to alleviate and contain the restriction of human rights by the offensive state, set-upinstitutions in conjunction with the oppressed entity in order to establish rule of law and focuson short term objectives. The second element focuses on the setting up of these institutions,centered on both political and economic infrastructure which will further self-government andfinal status recognition. The third element is a culmination of the aforementioned elementsregarding the issue of final status. If the previous two elements have been fulfilled and operateeffectively within their right, then final status can be sought through the internationalcommunity. Paul Williams, co-founder of PILPG expounds three additional elements. The firstof which is phased sovereignty: further elaborating upon the time frame in which theinternational community hands over territorial and administrative authority to the sub stateentity through the establishment of human rights and institution construction. The secondelement - conditional sovereignty - is identifiable through criteria which must be met in orderto be eligible for final status recognition. These criteria would entail the guarantee of minority6 Public International Law and Policy Group is a non-profit organization which offers its legal services to developing and sub-state entities who are subject to conflict.7 The International Crisis Group is a non-governmental organization which seeks to prevent and resolve conflictual issues. 14
  • 15. rights, solidification of democratic institutions, rule of law and attempts to further regionalstability. The third element is a form of constrained sovereignty — the sub state entity hasrestrictions with regards to interactions with other state actors. An international presenceis still prevalent within the territorial borders; this is in place so to as avoid any formof retaliation. It has been argued by Williams that all elements should be implemented throughconsent of all parties involved but in exceptional cases forced implementation is necessary(Max Planck UNYB, 2005). When referring to deserved sovereignty, two doctrines are essential for the final statusof Kosovo that of UNSCR 1244 and the Rambouillet Agreement8 signed on the 18 March1999. The period between 1999 and the unilateral declaration of 2008 saw the establishmentof democratic institutions and the development of self governance for the solidification offinal status. Due to failed UN initiatives, Kosovo sought its own action on the 17 February2008. The following paragraphs will address the aforementioned doctrines9 and how they areapplicable with regard to a determination of final status.2.1 Human Rights Abuses The difference between constructive secession and a deserved sovereignty lies within therestriction of human rights and the approaches taken towards it, whereas constructivesecession, being remedial in nature, views the suppression of human rights as a catalyst. Thedeserved sovereignty approach works through a conflict resolution medium and focuses lesson casual factors. Laws enacted upon the Albanians in 1989 forbid them from anyunsanctioned sale of private property and the use of Albanian in the educational system — thisin itself establishes a violation of human rights (Crawford, 2003). Between 1992 and 1998 the UN General Assembly adopted twelve resolutions regardingthe human rights abuses inflicted upon Kosovar-Albanians. The resolutions were a result8 The Rambouillet Agreement was a peace agreement drafted by NATO in order to solve conflictual issues between the Federal Republic of Yugoslavia and a delegation who represented the ethnic Albanian majority present within Kosovo.9 Seven points regarding the right to unilateral secession noted on page 11. 15
  • 16. of extensive work done by the Commission and Security on Cooperation in Europe (CSCE10)and the Special Rapporteur on behalf of the UN. The CSCE additionally reportedon economic and administrative structures which ran parallel to those operated by the FRY.A statement issued by the European Community in 1992 called for Kosovo to retain itsautonomous state within the FRY. At this point, it was internationally known that Kosovo hadno autonomous rights and human suffering was prevalent, yet no action was taken outsideof the human rights issue. It can be deduced that remedial issues were not taken into consideration at this time.However, with the advent of the Kosovo War the matter transformed from a human rightsissue into a humanitarian crisis. As Serbian military and paramilitary forces began to useindiscriminate and disproportionate use of force against civilians, severe human rightsviolations and crimes against humanity were committed. At this point, the internationalcommunity reacted — the UN Security Council called for increased autonomy andconsequential self-determination in 1998. The Rambouillet Accords were drafted by NATO on the 23 February 1998 withthe intention of granting powers of self-government and the recognition of Kosovos territorialintegrity by the FRY for a period of three years, whereby a referendum would be heldregarding its further status. The FRY and Serbia refused to sign the accord which justified theactions of NATO when Operation Allied Force was initiated on 24 March 1999 (Vidmar,2009). With regards to deserved sovereignty, the Rambouillet Accords was unsuccessfulas a peace agreement, but, due to decreased FRY sovereignty over the territory, it did aidKosovo in increased sovereignty.2.2 Contravention of Autonomy An additional element, which is remedial in nature and invokes legal implications, is thesuppression of ones right to self-determination. As the right to self-determination is itself juscogens, the refutation of internal self-determination can transform itself into an external self-determination (Cassese, 1999). The notion of deserved sovereignty does not directly concernitself with suppression of autonomous self-government or restriction of human rights; it doesthough aim to resolve them.10 The Commission and Security and Cooperation in Europe is an independent United States GovernmentAgency. The agency works closely with the Organization for Security and Cooperation in Europe (OSCE) and isinfluential towards United States foreign policy. 16
  • 17. In order for a sub state entity to obtain any legal grounds upon which to act, a normativeshift must be invoked. Thus, sovereignty must be defined as responsibility and not authorityover a territory with responsibility being governed by the UN Charter and the UniversalDeclaration of Human Rights (UDHR) (Welsh, 2006). This then weakens the host stateslegitimacy over the territory, in turn, transferring legitimacy to the sub state entity which,as a result, has reasonable justification for deserved sovereignty. With reference to Kosovo,the first constitution adopted on 31 January 1946 through the then FPRY created theKosovan-Metohija territory. The first constitution of the SFRY adopted on 7 April 1963 changed the legal statusof Kosovo-Metohija into an autonomous province within the greater territory of the SocialistRepublic of Serbia. Constitutional amendments in 196811, 1971 and 1974 bestowed upon theSocialist Autonomous Province of Kosovo the status of republic, although, throughdocumentation, it was termed a quasi-republic. The legality was more towards thatof a republic with its own Supreme Court and Albanian flag (Dorich, 1992). In the same year,the second Constitution of SFRY (21 February 1974) was adopted and so was the FirstConstitution of Kosovo (1974). The federal constitution granted certain rights to the provincesof Kosovo and Vojvodina, though they were bound to the federal republic, provincialconstitutions and, additionally, constituents of Serbia. Due to the legal status obtained by Kosovo through the Constitution of SFRY 1974, theSocialist Republic of Serbia proposed amendments in order to reintegrate Kosovo. As a resultof Albanian demands throughout the 1980s for republic status, the Socialist Republicof Serbia passed a new constitution on 28 September 1990. The result of this legislation wasthat Kosovo once again became Kosovo-Metohija and its legal status retarded to that underthe First Constitution of the FPRY (Radan, 2001). Between 1988 and 1990, constitutional amendments to limit the competencies of theAssembly in Kosovo had been introduced by the Socialist Republic of Serbia and by Julyof 1990 the organ was abolished. Due to Serbia insisting that it was a domestic matter and didnot concern the international community, politicians did not use the Arbitration Commission11 Within the text of the 1968 Constitutional Amendment the territory of Kosovo-Metohija was renamed the Socialist Autonomous Province of Kosovo. 17
  • 18. of the Conference of Yugoslavia12 (27 August 1991) to directly address the issue of Kosovoin the international arena. Additionally, UN Resolution 116013, Resolution 119914, Resolution 120315 and Resolution124416 were attempts to restore autonomy in the face of the Kosovo Conflict. Restorationcould only be established through containment of hostilities by an international presence.The justification for Operation Noble Anvil (24 March 1999) was summed up by UnitedStates President William Jefferson “Bill” Clinton when he spoke on the issue of Kosovo: Kosovo has been stripped of its constitutional autonomy, thus denying [people]...their right to speak their language, run their schools, shape their daily lives. For years, Kosovars struggled peacefully to get their rights back. When President Milosevic sent his troops and his police to crush them, the struggle grew violent.17 The recognition statements by state actors in the Security Council debate held on 13February 2008 were in accordance with the suppression of human rights, which was thecentral principle behind self-determination. No state actor directly addressed the repudiationof autonomy but focused on the right to self-determination; in itself, this right is nota justification for recognition. In the case of Kosovo, it was only through UNSCR 1244 thatgave credence to Kosovo claims. The following section of the thesis will address the approach of reformative secession andhow it could provide a plausible solution to the Kosovo situation. Reformative secession willbe further broken down into three zones of legality under which the peoples of Kosovowill choose to be governed. These zones will be: Republic of Kosovo, Kosovo as a regionalaffiliate of the Republic of Serbia and Institutions administered by both the Republicof Kosovo and the Republic of Serbia.12 The Arbitration Commission of the Conference of Yugoslavia was created by the Council of Minister of the ECC to provide the SRFY with legal advice regarding its dissolution.13 Passed on the 31 March 1998, imposed an arms embargo on the SFrY under Chapter 7 of the UN Charter.14 Passed on 23 September 1998, recalled Resolution 1160 and sought to contain and cease hostile activities between Albanian and Yugoslav forces.15 Passed on 24 October 1998, recalled Resolutions 1160 and 1199. It sought for the SFRY to comply with the recalled resolutions and co-operate with NATO and OSCE verification missions within Kosovo.16 Passed on 10 June 1999, recalled Resolutions 1160, 1199 and 1203. Established UNMIK being the international civil and military presence within the territory of Kosovo.17 Statement on Kosovo, (March, 24 1999). Retrieved on 21 February 2011 from http://millercenter.org/scripps/archive/speeches/detail/3932 18
  • 19. 3. REFORMATIVE SECESSION The following section of the thesis will focus on reformative secession as a possiblesolution directed towards the governance over the territory of Kosovo. For the purpose of thisthesis, reformative secession is comprised of two predominant ethnic peoples residing withinthree legal spheres under which all parties 18 have equal interest. Additionally, the useof the term secession is intended as a final status objective and does not refer to immediatesovereign status with regard to the Republic of Kosovo. Reformative secession is comprised of two ethnicities: Albanian-Kosovars, who are onlyaffiliated with Kosovo as a subject of the international legal system and Serbian-Kosovars,who are only affiliated as a regional society of the Republic of Serbia. It must be noted at thispoint that the two mentioned ethnic peoples should decide as to which ethnicity they belong.The resulting decision will serve to answer as to whether they are under the jurisdictionof Kosovo, being a legal subject to the international legal system or an affiliated regionalsociety of the Republic of Serbia. The third sphere is comprised of the two sub set legalzones: 1. The relations held between Albanian and Serb-Kosovars; 2. The Republic of Kosovo as a legal subject under the international legal system and its relations with the Republic of Serbia. (Hehir, 2010) Each sphere has its own judicial, administrative and law-enforcement institutions which,at no point, overlap with another sphere. Additionally, each legal sphere is inherent with itsown norms set up either through the Republic of Kosovo (first sphere), the Republic of Serbiathrough Kosovo as a regional affiliate (second sphere) or institutions administered by both theRepublic of Kosovo and the Republic of Serbia (third sphere). Each sphere should honourthe other spheres accordingly, and authorities within each sphere should strive to buildand maintain an economic and legal equilibrium. In order to curb any irregularities withregards to the equilibrium status, a council of arbitration19 should be set up. The legality andthe functioning of the three spheres will be further elaborated.18 Parties understood as the Republic of Serbia, the Republic of Albania and the Republic of Kosovo.19 The council should initially be instituted through an international body. 19
  • 20. 3.1 First sphere – the Republic of Kosovo The first sphere concerns the Republic of Kosovo as an entity under the international legalsystem; only persons who have explicitly stated that they are or wish to be Albanian-Kosovarsare subject to the jurisdiction of the Republic of Kosovo. The Republic of Kosovo shouldhave a national flag, coat of arms and an anthem. It will be democratic in nature with its ownconstitution, laws and governed by a legitimate body (Tansey, 2009). The Republic of Kosovowill gain the capacity of a sovereign state and will, therefore, become an independent memberof the international community.3.2 Second sphere – Kosovo as a regional affiliate of the Republic of Serbia The second sphere regards Kosovo as a regional affiliate of the Republic of Serbia; onlypersons who have explicitly stated that they wish to be Serbian-Kosovars are subject to thejurisdiction of Kosovo as a regional affiliate of the Republic of Serbia. The aforementionedpeoples will hold Serbian citizenship and, therefore, will be subject to the constitution andlaws of the Republic of Serbia. The institutions within Kosovo, as a regional affiliate of theRepublic of Serbia, have the right to self-determination in accordance with the constitutionand laws governing the Republic of Serbia.3.3 Third sphere – Institutions administered by both, the Republic of Kosovo and theRepublic of Serbia The third sphere is strictly related to the relations held between Albanian and Serb-Kosovars, the Republic of Kosovo, the regional affiliate between Kosovo and the Republicof Serbia and the Republic of Serbia. The regulation of this structure can only be soughtthrough an inter-national legal treaty. Any laws deriving from the treaty must be applied incompliance with the Principle of Equality. The aforementioned Arbitration Council and anyother council should be comprised of members from the Republic of Kosovo and the Republicof Serbia in equal proportion. Furthermore, legal agreements need to be ratified by both parliaments. The three branchesof law - civil, criminal and commercial law - will be shared. This entails a prosecutionconcerning two individuals of differing ethnicity which has been explicitly stated beforehand.The prosecution will administer a shared law in accordance with legislation passed through 20
  • 21. a body comprised of members from the Republic of Kosovo and the Republic of Serbia,which will operate on the basis of the relations held and maintained between the Republicof Kosovo and the Republic of Serbia. The Republic of Serbia will accept that the Republic ofKosovo is an entity under the international legal system. Reciprocally, the Republicof Kosovo will accept Kosovo as a regional affiliate to the Republic of Serbia (Shapiro,Macedon, 2004). It must be clearly stated that this proposal is without precedent in the sphereof international law. Although with the use of the Constitution of the Socialist FederalRepublic of Yugoslavia 1974, it is possible to show a regressive status for Kosovo. As it wasmentioned in the second chapter, the Constitution of Kosovo became equal in status to thatof the SFRY. It can be further deduced that Kosovo was also equal in status to the SocialistRepublic of Serbia. Furthermore, the proposal of reformative secession only aspires toseparate the citizens where, as was initiated under the Constitution of 1974, a clear distinctioncan be made. The third sphere and its unique legal structure apply where there is an overlapbetween spheres one and two. The proposal is agreeable with international, state and Serbianlaw and in line with the legality of recognition invoked by states that recognize the Republicof Kosovo. Reformative secession does not appease all sides, but it does take into consideration allparties concerned. In order to find a solution, parties’ objectives must be flexible andnegotiable. What does weigh in the favour of a reformative approach is that it limits ethnictensions. Any solution regarding such a scenario requires all parties to accept the otheras being on equal ranking. Therefore, the enforcement of any policy upon another party,which it does not explicitly acquiesce to, violates the framework. Reformative secession is nota solid structure and requires continuous flexibility in order to adapt to the environment.It does seek to address all parties concerned and provide them with an opportunity throughwhich they may be governed. 21
  • 22. CONCLUSION The Unilateral Declaration of Independence by Kosovo continues to be a contentiousmatter, both - the legality of the action and its implications towards future status. It canbe stated that there is no relevant international doctrine or UNSCR that either prohibits orendorses such an action. Regardless, the Republic of Kosovo has emerged and dueto circumstances has gained recognition. From the 10th June 1999 to the 17th February 2008Kosovo was an international territory with the possibility of gaining independence throughUNSCR 1244, UNMIK and the Constitutional Framework. The unilateral secession wasenacted due to a frustrated Kosovar-Albanian leadership who had abandoned the internationalcommunity’s attempt to come to a consensus on the implementation of the UN Special Envoydraft. In the first two chapters, two approaches were used to dissect the complexity of theissue and formulate a clear understanding. The two approaches of constructive secession and deserved sovereignty were usedto analyze the Kosovo issue and illustrate its complexity. In its theoretical nature, constructivesecession was used to advocate the suppression of human rights, which undermines legitimategovernance and sovereignty. The inherent problem with such an approach is that it does notoffer solutions but rather only foresees the deterioration of the system; to investigate possiblesolutions the use of deserved sovereignty was applied. This approach advocates sevenintertwined criteria used to understand the nature of the process whereby internationallyadministered territory progresses towards sovereign state. Reformative secession was invoked to strengthen both — constructive secession anddeserved sovereignty. Usage of constructive secession principles by Russia to recognizeAbkhazia and South Ossetia illustrates a crucial point that such theoretical approaches canbe manipulated by powerful state actors to weaken an opponent or annex neighbouringterritory. Additionally, deserved sovereignty provides sub-state actors with the possibilityof increased autonomy to exert power internationally, which is unfounded and illegitimate.The purpose of bringing constructive secession and deserved sovereignty together is tocircumvent the possibility of further territorial fragmentation leading to conflict. Reformative secession, unlike constructive secession or deserved sovereignty, does notfocus on the issue of final status; the notion seeks to create a pragmatic structure throughwhich the people of Kosovo can function. It addresses the predominant parties and ethnic 22
  • 23. majorities, peoples who identify with being either Alabanian-Kosovar or Serb-Kosovar.These identities then create the legal and administrative structures which operate under theRepublic of Kosovo, Kosovo as a regional affiliate of the Republic of Serbia or institutionsgoverned by both — the Republic of Kosovo and the Republic of Serbia. It must be established that Kosovo is sui generis20; the importance of this is that no generalprinciple can be applied. It is through this thought paradigm that any future status concerningKosovo must be considered. Furthermore, it will be exceptions and not the general principlesthat determine the future status of Kosovo. Those sovereign states that do not recognize theRepublic of Kosovo do so because any form of recognition could ignite separatist entitieswithin their own territory. The Russian Federation has explicitly stated that any attemptto focus on the uniqueness of the Kosovo case is merely an effort to circumvent internationallegal structures. This represents the true nature of the dilemma, nationalistic dogmaintertwined with Realpolitik. The current status of Kosovo rests with the EU and the ongoing Belgrade-PristinaNegotiations initiated in March 2011. The matters being negotiated may seem otiose in naturebut this is a clear indication of what lays ahead. The EU has stated that it does not wishto establish a “UNMIK II” and it is questionable as to what extent European Security andDefence Policy (ESDP) will undermine Kosovo led institutions. Kosovo will test the EUsability to act as an impartial mediator with the risk of alienating one ethnic group over anotherhaving the potential to stall any form of dialogue indefinitely. A resolution passed on the 10thMarch 2011 in the Kosovo Assembly affirming their support for the Belgrade-PristinaNegotiations was adopted under the condition that only technical matters and not thesovereignty and territorial integrity of the Republic of Kosovo 21 would be discussed.Furthermore, the Austrian Foreign Minister Michael Spindelegger commented on thenegotiations as being progressive but the normalization of relations between the Republic ofSerbia and the Republic of Kosovo were still far in the future22. Starting with the KumanovoTreaty of 1999, which brought an end to the Kosovo War, up to the present Belgrade-PristinaNegotiations much has been achieved, but, for the Republic of Kosovo to be internationallyrecognized as a sovereign state, many more obstacles are still to be surmounted. This rests20 Sui generis understood as a legal term refers to case which is independent from categorization due to its unique characteristics.21 (March 11, 2011). Kosovos Parliament Passes Resolution Backing Talks With Serbia. Retrieved 10 May 2011.22 (March 28, 2011). Austrian Foreign Minister Lobbies for Recognition of Kosovos Independence by Entire EU. Retrieved 10 May 2011. 23
  • 24. with the EU and its ability to find acceptable grounds of agreement between all partiesconcerned, and the institutions of the Republic of Kosovo to establish a self-sustaining ruleof law, respect for human rights and an operative free market economy. 24
  • 25. ADDENDUM Illustration 1: The Ethnic Composition of Kosovo Source: adopted from OSCE 25
  • 26. Illustration 2: The Ethnic Composition of Kosovo in the 20th Century Source: adopted from Iricigor 26
  • 27. REFERENCESN.A. (March 28, 2011). Austrian Foreign Minister Lobbies for Recognition of Kosovos Independence by Entire EU. Retrieved 10 May 2011, from http://www.emg.rs/en/news/serbia/151004.htmlN.A. (1970). 2625 (XXV) Declaration on Principles of International Law concerning Friendly Relations and Co-Operation among States in accordance with the Charter of the United Nations: The Principle of equal rights and self-determination of peoples. General Assembly Twenty-fifth Session.N.A. (January 1, 1985). The Charter of the United Nations and Statue of the International Court of Justice. United Nations.N.A. (March 11, 2011). Kosovos Parliament Passes Resolution Backing Talks With Serbia. Retrieved 10 May 2011, from http://www.monstersandcritics.com/news/europe/news/article_1625045.php/Kosovos- parliament-passes-resolution-backing-talks-with-SerbiaN.A. (1999). United Nations Security Council Resolution 1244.Buchanan, A. (2007). Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law. Oxford University Press.Bogdandy, A., Wolfrum, R., C. E. Philipp. (2005). Max Planck Yearbook of United Nations Law: Volume 9. Brill Academic Publishers.Crawford, W., T. (2003). Pivotal Deterrence: Third-Party Statecraft and the Pursuit of Peace. Cornell University Press.Cassese, A. (1999). Self-determination of Peoples: A Legal Reappraisal. Cambridge University Press.Dorich, W., Jenkins, B., W., R., Dorich, A. (1992). Kosovo. Kosovo Ica. 27
  • 28. Hehir, A. (2010). Kosovo, Intervention and State Building: The International Community and The Transition to Independence. T & F Books, UK.Philip, C. (February 19, 2008). The Sunday Times: US and Britain join rush to recognize Kosovo.Times Newspapers Ltd.Radan, P. (2001). The Break-up of Yugoslavia and International Law. Routeledge.Shapiro, I., Macedo, S. (2000). Designing Democratic Institutions. NYU Press Reference.Tansey, O. (2009). Regime Building: Democratization and Institution Building. Oxford University Press, USA.Welsh, J., M. (2006). Humanitarian Intervention and International Relations. Oxford University Press.Vidmar, J. (2009). Vanderbilt Journal of Transnational Law: International Legal Responses to Kosovos Declaration of Independence. Vanderbilt University, School of Law. 28
  • 29. LIST OF ILLUSTRATIONSFischer, J. P. (n.d.). Ethnic Composition of Kosovo according to the OSCE in 2005. Retrieved May 29, 2011, from: http://en.wikipedia.org/wiki/File:Kosovo_ethnic_2005.pngIcirigor. (n.d.). Demographic History of Kosovo in the 20th Century. Retrieved May 29, 2011, from: http://en.wikipedia.org/wiki/File:Demographic-history-of-Kosovo-in-20th- century.png 29