COLLEGIUM CIVITAS

Department: International Relations

Student name: Michael Stapleton

Student number: 3385

KOSOVO: CONSTRUCTIVE SECESSION OR DESERVED

SOVEREIGNTY?

BA thesis

Written under the supervision of

dr Sergiusz Pukas

Warsaw, 2011

2

TABLE OF CONTENTS

ABBREVIATIONS .................................................................................................................... 3

INTRODUCTION ...................................................................................................................... 4

1. CONSTRUCTIVE SECESSION ........................................................................................... 8

1.1 Legality of a Unilateral Declaration .......................................................................... 10

2. DESERVED SOVEREIGNTY ............................................................................................ 14

2.1 Human Rights Abuses .................................................................................................... 15

2.2 Contravention of Autonomy ........................................................................................... 16

3. 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 .................................................................................................... 20

CONCLUSION ........................................................................................................................ 22

ADDENDUM ........................................................................................................................... 25

REFERENCES ......................................................................................................................... 27

LIST OF ILLUSTRATIONS .................................................................................................... 29

3

ABBREVIATIONS

CSCE Commission on Security and Cooperation in Europe

ECC European Economic Community

ESDP European Security and Defence Policy

EU European Union

EULEX European Rule of Law Commission in Kosovo

FRY Federal Republic of Yugoslavia

FPRY Federal People's Republic of Yugoslavia

ICJ International Court of Justice

ICTY International Court for the Former Yugoslavia

NATO North Atlantic Treaty Organization

OSCE Organization for Security and Co-operation in Europe

PILPG Public International Law and Policy Group

SFRY Socialist Federal Republic of Yugoslavia

UDHR Universal Declaration of Human Rights

UN United Nations

UNHRC United Nations Human Rights Council

UNMIK United Nations Interim Administration Mission in Kosovo

USA United States of America

UNSC United Nations Security Council

UNSCR 1244 United Nations Security Council Resolution 1244

USSR Union of Soviet Socialist Republics

4

INTRODUCTION

This thesis will focus on two approaches towards the recognition of Kosovo's

independence, that of constructive secession and deserved sovereignty. The thesis will

commence with the examination of remedial secession and how it is applicable in the case

of Kosovo from 1989 through to 1999. It will be argued that the application of remedial

secession was an incorrect instrument to use, both from the legal and political standpoint.

Deserved sovereignty currently lacks a precise definition, but is understood to entail

a process of a sovereign or sovereigns who maintain authority over a region for the purpose

of stability, relinquishing authority to a recognized entity while being supervised by

an international body or bodies. In order for deserved sovereignty to be evident three criteria

must be present. The first being shared sovereignty where a state, sub-state entity

or an international organization, exercise authority over a defined region for a predetermined

time frame. Second - institution building, where the entity which will ultimately govern

the defined territory (with the assistance of an international body) implements public

institutions or recreates those already present. The final stage is the acceptance of the state

as a sovereign by the international community, which is determined by the relationship

between the state and the sub-state.

For cases with a particularly delicate situation such as Kosovo three additional factors are

necessary: firstly, phased sovereignty where the sub-state assumes authority over the

functioning of the defined region over a predetermined time frame before an earned sovereign

status is assumed. Secondly, conditional sovereignty where criteria have to be met in stages

forming a process towards sovereign status. Thirdly, constrained sovereignty where

an international body limits the authority of the sovereign through continued military presence

or administrative functions whereby the sovereign is unable to undertake territorial

association with other state actors.

In the contemporary political sphere the solution to a sovereign conflict has been

approached from either deserved sovereignty, which has been earned through co-operation

with an external entity, or the right to self-determination. It can be argued that deserved

sovereignty is a regressive approach as it creates state and sub-state entities and the criteria

to attain sovereign status is out of reach for certain applicants. Let then be viewed as a process

5

whereby a sub state entity is formed for the purpose of alleviating conflict and guided towards

sovereign status with the assistance of the international community so as not to provoke the

state 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 culminating

in its uniqueness and requirements needed to achieve a balance. With reference to the case

of Kosovo and the purpose of this thesis, the author suggests an alternative approach, that

of constructive sovereignty.

Constructive sovereignty will be defined as the populace being granted sovereignty

by requesting constructive secession and therefore initiating the above mentioned process

involving the initial three factors of shared sovereignty, institution building and sovereign

recognition. The proposition then is a prototype structure which can serve to avert additional

conflict created as a result of a sub-state entity being granted sovereign status such as the case

of the Republic of Kosovo.

The unilateral declaration of independence by Kosovo on the 17 February 2008 was

greeted with an indifferent response by the international community. To date seventy two

United 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 North

Atlantic Treaty Organization (NATO) members. Notable abstainers of recognition are China

and Russia who supported Serbia in the Accordance with the International Law of the

Unilateral Declaration of Independence in Respect of Kosovo, which was an advisory opinion

sought through the International Court of Justice (ICJ) from the UN General Assembly with

regards to the 2008 unilateral declaration of independence by Kosovo. The advisory opinion

was delivered on the 22 July 2010 and declared that the unilateral declaration of independence

by Kosovo on the 17 February 2008 did not violate international law, the Constitutional

framework or United Nations Security Council Resolution (UNSCR) 1244. The ICJ provided

its advisory opinion only towards the specific nature of the question brought forward. It did

not touch on the validity of sovereign recognition by the UN members at the time and the

legal implications thereof; nor did it analyze the justifications for the recognition by these

members.

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 years

of international administration, Kosovo's continued respect towards minority groups and the

acceptance of conditional sovereignty. The underlying tone rests upon the notion that Kosovo

as an independent state will bring stability to the region. More importantly the case

of Kosovo is unique and is not a benchmark by which non-recognized state entities should

seek recognition. Furthermore, international law does not grant an entity to seek recognition

unless 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 cannot

be taken as a precedent for future cases.

The legality of a secessionist state is neither legal nor illegal with regards to international

law but can be placed within the framework of legality through the regulation of the

international community. The implications of granting an entity sovereignty has great impacts

upon the legal and political arena both domestically and globally. The international

implications are the acceptance into international organizations and involvement in global

security, economic and political spheres; for Kosovo such participation and acceptance are

vital for the political stabilization of the territory. Additionally, the acceptance of borders and

associated 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 Kosovo

is equal to that of the unilateral declaration and is paramount to the future functioning

of the state.

Taking into account both the legal and political implications of recognition and the

disputes which have followed Kosovo's Unilateral Declaration of Independence, this thesis

will analyze the basis of recognition that has been advocated by states which recognize

the Republic of Kosovo.

This analysis will be conducted upon two theoretical approaches that will propose

a 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 upon

a group by the governing authorities is calibrated against possible solutions. The solutions

range from the lowest integer, being the protection of rights on an individual basis, moving

further up to the protection of a group and the highest level being that of secession as the only

7

justifiable solution. Whereas constructive secession is linked to international intervention,

the second approach of deserved sovereignty focuses on institution building. This

is performed through the international community who initially manage the conflicted

territory in order to build institutions which will ultimately be operated by the sub-state entity

seeking secession.

This thesis will investigate how similar these two theoretical approaches are to the

practical international response which the case of Kosovo has seen, with particular attention

being 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 two

aforementioned theories. It will serve the purpose of more precisely addressing the situation

where an oppressed people seek sovereign status through international mechanisms taking

into account international law and politics.

The following section of the thesis will further elaborate upon the theory of constructive

secession and its application to the Kosovo situation. Furthermore, the legality of unilateral

declaration 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, will

be elucidated.

8

1. CONSTRUCTIVE SECESSION

The grounding principles for constructive secession are based within the field

of international law and, specifically, that of normative theory - theoretical approach which

addresses the remedial rights of a group who wish to secede. It can only be brought into force

where it has been deemed that the afflicted group will no longer suffer injustice as a result

of secession. The right of the oppressed group is in direct proportion to the number of

afflicted persons within a defined region of a state.

Therefore, the use of secession is not to inflict negative ramifications towards the

governing power but to separate the two entities - state and sub-state - in order to emancipate

the oppressed group, resolve conflict and stabilize the region; additionally, with

the involvement of the international community, to circumvent the right of revolution which

is a direct result of continual injustices towards a specific group.

In the case of Kosovo, where the disproportion of belligerents favoured the Federal

Republic of Yugoslavia (FRY) excluding NATO forces, secession is seen as a favourable

solution 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 their

defined 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 entity

which has suppressed human rights in order to further its status, serves as a veto. If this is then

addressed from the opposing view, the recognition of a sub-state entity can be based on the

alleviation of the suppressed people, which would result in the group seceding from

the 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.

9

The right to self-determination is inherent in international law and provides an entity with

the ability to embark on a process of secession. The Declaration on principles

of International Law concerning friendly relations and co-operation among states

in accordance with the Charter of the United Nations, adopted during the twenty fifth session

of the General Assembly's on the 24 October 1970, contains a principle with direct reference

to the subject of self-determination. The Principle of Equal Rights and Self-Determination

of 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 can

be taken by an oppressed people within a legal framework. A state which does not abide

by the Charter and therefore violates the principle of equal rights and does not provide

the limited peoples with an option of self-determination invokes the grounds by which

it can be dismembered. This dismemberment can be invoked with regard to the territorial

integrity and or political disunity. Territorial integrity is a pillar which supports the stability of

global peace and prosperity and is inherent within the UN Charter. The notion centres on the

position 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 must

be 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 inapplicable

with regards to domestic issues within a state.

10

1.1 Legality of a Unilateral Declaration

The dissolution of the USSR and the end of the Cold War saw concepts of constructive

secession gaining prominence within the international community. Territories which sought to

further their independence looked to the framework of international law in order to legitimize

their secessionist movement; as movements have been met with opposition so complexities

have arisen.

Legal positivism asserts that secession is a matter within the realm of politics and therefore

is unrelated to any legal jurisdiction. Secession in itself directly challenges the theories

of International Relations, most notably the realist school of thought, where international law

only runs in accordance with the power politics of the global arena. Within this thought

paradigm, a secessionist movement will only achieve its desired result if its goal is aligned

with powerful state actors.

Positivists and realists agree that a unilateral declaration does not fall within the rights and

norms of international law; however, if all other options have been exhausted the decision

may stand. The inquiry of the General Assembly with reference to the unilateral declaration

of Kosovo is the first case which the ICJ has had to question the legality of secession with

regards to a unilateral declaration. Under Article 65 of the Statute of the ICJ the Court

is vested with the power to grant advisory opinions to the UN; furthermore, under Article 96

of the UN Charter the latter is authorized to request such an opinion. Although the Court

stated that the advisory opinion in question was inherently political in nature, it was not

outside the parameters of its jurisdiction.

The opinions of the ICJ are not directed towards states. Although, they do indirectly

reference them, it only concerns itself with the Security Council, General Assembly and any

other organ of the UN who are granted authorization under Article 96. Therefore, the motives

of state actors, who vote for a resolution requesting an advisory opinion, are irrelevant

towards the outcome. Additionally, the Court has rejected inferences where no indication

as to the use of the decision and to its legal effect has been given by the General Assembly

therefore granting the Court the power to accept or reject such opinions.

11

The Court was requested to provide an opinion on whether the declaration

of independence was within the framework of international law; it did not attempt to question

the consequences of such an opinion. Ergo, it was not concerned with the status of Kosovo as

a sovereign state, the result of its opinion or the legal implications regarding the recognition

of the Republic of Kosovo by other state actors. The advisory opinion requested by the

General Assembly did not address the issue of a unilateral declaration leading to statehood nor

did 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) regulation

2001/9 enacted the Constitutional Framework, which was executed by Lamberto Zanier the

United Nations Special Representative for Kosovo. The authorization for such an action was

granted through UNSCR 1244, the basis of which is derived from the UN Charter.

Theoretically speaking, through the Constitutional Framework Kosovo acquired

an international legal character. The Constitutional Framework is a body of law in use

by external institutions to administer Kosovo. The Assembly of Kosovo was set-up and

granted legality through the Constitutional Framework. The institution can approve legislation

only within the parameters set and it is subservient solely to the United Nations Special

Representative. Therefore, through the power granted by UNSCR 1244 and the Constitutional

Framework, the United Nations Special Representative can supervise the institutions set-up

through UNMIK. At no time before the declaration of independence by the Assembly

of Kosovo on 17 February 2008 had UNSCR 1244 or the Constitutional Framework been

abrogated; furthermore, there is no clause referring to their termination. Additionally, they are

inherent 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 political

administration of Kosovo, Resolution 1244 was the basis upon which the international civil

and political authority was established. It must be kept in mind that it is an exceptional legal

instrument created in response to the Kosovo Conflict of 1999. The formation of an interim

international administration was to circumvent humanitarian issues for the purpose of creating

a stable environment enabling the establishment of law and order.

In order to ensure stability, local institutions would be set-up under the supervision

of the international administer, creating the self-government of Kosovo and excluding Serbia

from exercising authority over the territory in question. From this, it was concluded by the ICJ

12

that UNSCR 1244 was exceptional in nature and usurped Serbian legal jurisdiction on

an interim basis. Regarding the legality of a unilateral declaration under UNSCR 1244, there

is no clear interpretation that denies an entity the right to unilaterally secede. Although the

declaration adopted on the 17 February 2008 was through representatives of the people

of Kosovo, it did not act within the Constitutional Framework of the Provisional Institutions

of Self-Government. Additionally, it did not hinder international influence within the

administrative 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 parties

concerned must come to a consensus (most notably that of Serbia). The other option is for the

Contact Group2 to follow the Guiding Principles

3, which would authorize the Security

Council to pass a resolution affirming Kosovo’s final status. The language used in UNSCR

1244 is ambiguous in nature and, as mentioned before, concerns itself with the interim

administration of Kosovo and not its final status; therefore, a unilateral declaration is not

a direction violation of the UNSCR 1244.

Constructive secession is not a right that can be acted upon; although, it does offer both

political and normative legality to an oppressed people. This further induces state actors

to support such a movement. A contemporary scholar, Allen Buchanan, advocates a notion

of restructuring international law, which should be centered on a Just Cause Theory4. Within

this paradigm, secession would only be just if it is remedial in nature, which can be identified

against three principles: firstly — basic human rights have been restricted on a large scale;

secondly — territory has been unjustly annexed; lastly — a state actor continuously violates

the autonomy of an interstate whose status has been defined through agreements by both

parties (Buchanan, 2007). Furthermore, with respect to the Principle of Last Resort, all forms

of negotiation or agreement must be exhausted.

The entity wishing to secede must attest to its representative nature, abide by the rule

of law and the Universal Declaration of Human Rights. Through the Principle of Right

Intentions, the action of unilateral declaration should be made in good faith to rectify

oppressive injustices. Additionally, the action must be proportional in nature and the cost

2 The Contact Group is comprised of the most influential countries who have interests within the Balkan

Peninsula. 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 principles

which must be adhered by all parties concerned regarding the final status of Kosovo in accordance with Security

Council Resolution 1244. 4 The Just Cause Theory advocates the secession based upon the oppression of a peoples.

13

of secession must be in accordance with the desired outcome. Lastly, the action of secession

must be made with the intention of recognition by other state actors. In conclusion, the

following seven points are the tenets of constructive session and could be invoked to justify

the 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 the

case of Kosovo. This approach will be further expanded upon by discussing human rights

abuses and the contravention of autonomy.

5 Granted the autonomous entity has been ceded the afore mentioned status through an agreement with the state

actor who restricts human rights.

14

2. DESERVED SOVEREIGNTY

The development of any notion regarding Kosovo's final status was first commissioned

by the Public International Law and Policy Group6 in conjunction with the International Crisis

Group7 in November of 1998. The position was taken in line with the remedial stance in that

the people of Kosovo would be granted an elevated state of sovereignty due to restricted

human rights under Serbian authority. A final status would only be seen in the event of a fully

democratic self-government respecting human rights and maintaining security within the

region. Under this doctrine, an international presence would be observed over a three to five

year period. During this transition stage, Kosovo would assume greater authority over its

functions from Serbia so long as it respects the rights of minorities and agrees to border

delineations. Initially, this approach was termed supervisory statehood but as the direction

tends towards final status, this thesis will term it deserved sovereignty.

Deserved sovereignty is comprised of three fundamental elements, the first being shared

sovereignty. This element is a method whereby there is a co-existence between the entity

wishing to secede and the international community. The basis of this shared approach

is to alleviate and contain the restriction of human rights by the offensive state, set-up

institutions in conjunction with the oppressed entity in order to establish rule of law and focus

on 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 and

final status recognition. The third element is a culmination of the aforementioned elements

regarding the issue of final status. If the previous two elements have been fulfilled and operate

effectively within their right, then final status can be sought through the international

community.

Paul Williams, co-founder of PILPG expounds three additional elements. The first

of which is phased sovereignty: further elaborating upon the time frame in which the

international community hands over territorial and administrative authority to the sub state

entity through the establishment of human rights and institution construction. The second

element - conditional sovereignty - is identifiable through criteria which must be met in order

to be eligible for final status recognition. These criteria would entail the guarantee of minority

6 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.

15

rights, solidification of democratic institutions, rule of law and attempts to further regional

stability.

The third element is a form of constrained sovereignty — the sub state entity has

restrictions with regards to interactions with other state actors. An international presence

is still prevalent within the territorial borders; this is in place so to as avoid any form

of retaliation. It has been argued by Williams that all elements should be implemented through

consent 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 status

of Kosovo that of UNSCR 1244 and the Rambouillet Agreement8 signed on the 18 March

1999. The period between 1999 and the unilateral declaration of 2008 saw the establishment

of democratic institutions and the development of self governance for the solidification of

final status. Due to failed UN initiatives, Kosovo sought its own action on the 17 February

2008. The following paragraphs will address the aforementioned doctrines9 and how they are

applicable with regard to a determination of final status.

2.1 Human Rights Abuses

The difference between constructive secession and a deserved sovereignty lies within the

restriction of human rights and the approaches taken towards it, whereas constructive

secession, being remedial in nature, views the suppression of human rights as a catalyst. The

deserved sovereignty approach works through a conflict resolution medium and focuses less

on casual factors. Laws enacted upon the Albanians in 1989 forbid them from any

unsanctioned sale of private property and the use of Albanian in the educational system — this

in itself establishes a violation of human rights (Crawford, 2003).

Between 1992 and 1998 the UN General Assembly adopted twelve resolutions regarding

the human rights abuses inflicted upon Kosovar-Albanians. The resolutions were a result

8 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.

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 reported

on 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 its

autonomous state within the FRY. At this point, it was internationally known that Kosovo had

no autonomous rights and human suffering was prevalent, yet no action was taken outside

of 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 rights

issue into a humanitarian crisis. As Serbian military and paramilitary forces began to use

indiscriminate and disproportionate use of force against civilians, severe human rights

violations and crimes against humanity were committed. At this point, the international

community reacted — the UN Security Council called for increased autonomy and

consequential self-determination in 1998.

The Rambouillet Accords were drafted by NATO on the 23 February 1998 with

the intention of granting powers of self-government and the recognition of Kosovo's territorial

integrity by the FRY for a period of three years, whereby a referendum would be held

regarding its further status. The FRY and Serbia refused to sign the accord which justified the

actions of NATO when Operation Allied Force was initiated on 24 March 1999 (Vidmar,

2009). With regards to deserved sovereignty, the Rambouillet Accords was unsuccessful

as a peace agreement, but, due to decreased FRY sovereignty over the territory, it did aid

Kosovo in increased sovereignty.

2.2 Contravention of Autonomy

An additional element, which is remedial in nature and invokes legal implications, is the

suppression of one's right to self-determination. As the right to self-determination is itself jus

cogens, the refutation of internal self-determination can transform itself into an external self-

determination (Cassese, 1999). The notion of deserved sovereignty does not directly concern

itself with suppression of autonomous self-government or restriction of human rights; it does

though aim to resolve them.

10

The Commission and Security and Cooperation in Europe is an independent United States Government

Agency. The agency works closely with the Organization for Security and Cooperation in Europe (OSCE) and is

influential towards United States foreign policy.

17

In order for a sub state entity to obtain any legal grounds upon which to act, a normative

shift must be invoked. Thus, sovereignty must be defined as responsibility and not authority

over a territory with responsibility being governed by the UN Charter and the Universal

Declaration of Human Rights (UDHR) (Welsh, 2006). This then weakens the host states

legitimacy 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 the

Kosovan-Metohija territory.

The first constitution of the SFRY adopted on 7 April 1963 changed the legal status

of Kosovo-Metohija into an autonomous province within the greater territory of the Socialist

Republic of Serbia. Constitutional amendments in 196811

, 1971 and 1974 bestowed upon the

Socialist Autonomous Province of Kosovo the status of republic, although, through

documentation, it was termed a quasi-republic. The legality was more towards that

of 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 First

Constitution of Kosovo (1974). The federal constitution granted certain rights to the provinces

of Kosovo and Vojvodina, though they were bound to the federal republic, provincial

constitutions and, additionally, constituents of Serbia.

Due to the legal status obtained by Kosovo through the Constitution of SFRY 1974, the

Socialist Republic of Serbia proposed amendments in order to reintegrate Kosovo. As a result

of Albanian demands throughout the 1980's for republic status, the Socialist Republic

of Serbia passed a new constitution on 28 September 1990. The result of this legislation was

that Kosovo once again became Kosovo-Metohija and its legal status retarded to that under

the First Constitution of the FPRY (Radan, 2001).

Between 1988 and 1990, constitutional amendments to limit the competencies of the

Assembly in Kosovo had been introduced by the Socialist Republic of Serbia and by July

of 1990 the organ was abolished. Due to Serbia insisting that it was a domestic matter and did

not concern the international community, politicians did not use the Arbitration Commission

11

Within the text of the 1968 Constitutional Amendment the territory of Kosovo-Metohija was renamed the

Socialist Autonomous Province of Kosovo.

18

of the Conference of Yugoslavia12

(27 August 1991) to directly address the issue of Kosovo

in the international arena.

Additionally, UN Resolution 116013

, Resolution 119914

, Resolution 120315

and Resolution

124416

were attempts to restore autonomy in the face of the Kosovo Conflict. Restoration

could only be established through containment of hostilities by an international presence.

The justification for Operation Noble Anvil (24 March 1999) was summed up by United

States 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 13

February 2008 were in accordance with the suppression of human rights, which was the

central principle behind self-determination. No state actor directly addressed the repudiation

of autonomy but focused on the right to self-determination; in itself, this right is not

a justification for recognition. In the case of Kosovo, it was only through UNSCR 1244 that

gave credence to Kosovo claims.

The following section of the thesis will address the approach of reformative secession and

how it could provide a plausible solution to the Kosovo situation. Reformative secession will

be further broken down into three zones of legality under which the peoples of Kosovo

will choose to be governed. These zones will be: Republic of Kosovo, Kosovo as a regional

affiliate of the Republic of Serbia and Institutions administered by both the Republic

of 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

19

3. REFORMATIVE SECESSION

The following section of the thesis will focus on reformative secession as a possible

solution directed towards the governance over the territory of Kosovo. For the purpose of this

thesis, reformative secession is comprised of two predominant ethnic peoples residing within

three legal spheres under which all parties18

have equal interest. Additionally, the use

of the term secession is intended as a final status objective and does not refer to immediate

sovereign status with regard to the Republic of Kosovo.

Reformative secession is comprised of two ethnicities: Albanian-Kosovars, who are only

affiliated 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 this

point 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 jurisdiction

of Kosovo, being a legal subject to the international legal system or an affiliated regional

society of the Republic of Serbia. The third sphere is comprised of the two sub set legal

zones:

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 its

own norms set up either through the Republic of Kosovo (first sphere), the Republic of Serbia

through Kosovo as a regional affiliate (second sphere) or institutions administered by both the

Republic of Kosovo and the Republic of Serbia (third sphere). Each sphere should honour

the other spheres accordingly, and authorities within each sphere should strive to build

and maintain an economic and legal equilibrium. In order to curb any irregularities with

regards to the equilibrium status, a council of arbitration19

should be set up. The legality and

the 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.

20

3.1 First sphere – the Republic of Kosovo

The first sphere concerns the Republic of Kosovo as an entity under the international legal

system; only persons who have explicitly stated that they are or wish to be Albanian-Kosovars

are subject to the jurisdiction of the Republic of Kosovo. The Republic of Kosovo should

have a national flag, coat of arms and an anthem. It will be democratic in nature with its own

constitution, laws and governed by a legitimate body (Tansey, 2009). The Republic of Kosovo

will gain the capacity of a sovereign state and will, therefore, become an independent member

of 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; only

persons who have explicitly stated that they wish to be Serbian-Kosovars are subject to the

jurisdiction of Kosovo as a regional affiliate of the Republic of Serbia. The aforementioned

peoples will hold Serbian citizenship and, therefore, will be subject to the constitution and

laws of the Republic of Serbia. The institutions within Kosovo, as a regional affiliate of the

Republic of Serbia, have the right to self-determination in accordance with the constitution

and laws governing the Republic of Serbia.

3.3 Third sphere – Institutions administered by both, the Republic of Kosovo and the

Republic 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 Republic

of Serbia and the Republic of Serbia. The regulation of this structure can only be sought

through an inter-national legal treaty. Any laws deriving from the treaty must be applied in

compliance with the Principle of Equality. The aforementioned Arbitration Council and any

other council should be comprised of members from the Republic of Kosovo and the Republic

of Serbia in equal proportion.

Furthermore, legal agreements need to be ratified by both parliaments. The three branches

of law - civil, criminal and commercial law - will be shared. This entails a prosecution

concerning two individuals of differing ethnicity which has been explicitly stated beforehand.

The prosecution will administer a shared law in accordance with legislation passed through

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 Republic

of Kosovo and the Republic of Serbia. The Republic of Serbia will accept that the Republic of

Kosovo is an entity under the international legal system. Reciprocally, the Republic

of 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 sphere

of international law. Although with the use of the Constitution of the Socialist Federal

Republic of Yugoslavia 1974, it is possible to show a regressive status for Kosovo. As it was

mentioned in the second chapter, the Constitution of Kosovo became equal in status to that

of the SFRY. It can be further deduced that Kosovo was also equal in status to the Socialist

Republic of Serbia. Furthermore, the proposal of reformative secession only aspires to

separate the citizens where, as was initiated under the Constitution of 1974, a clear distinction

can be made. The third sphere and its unique legal structure apply where there is an overlap

between spheres one and two. The proposal is agreeable with international, state and Serbian

law and in line with the legality of recognition invoked by states that recognize the Republic

of Kosovo.

Reformative secession does not appease all sides, but it does take into consideration all

parties concerned. In order to find a solution, parties’ objectives must be flexible and

negotiable. What does weigh in the favour of a reformative approach is that it limits ethnic

tensions. Any solution regarding such a scenario requires all parties to accept the other

as 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 not

a 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 through

which they may be governed.

22

CONCLUSION

The Unilateral Declaration of Independence by Kosovo continues to be a contentious

matter, both - the legality of the action and its implications towards future status. It can

be stated that there is no relevant international doctrine or UNSCR that either prohibits or

endorses such an action. Regardless, the Republic of Kosovo has emerged and due

to circumstances has gained recognition. From the 10th

June 1999 to the 17th

February 2008

Kosovo was an international territory with the possibility of gaining independence through

UNSCR 1244, UNMIK and the Constitutional Framework. The unilateral secession was

enacted due to a frustrated Kosovar-Albanian leadership who had abandoned the international

community’s attempt to come to a consensus on the implementation of the UN Special Envoy

draft. In the first two chapters, two approaches were used to dissect the complexity of the

issue and formulate a clear understanding.

The two approaches of constructive secession and deserved sovereignty were used

to analyze the Kosovo issue and illustrate its complexity. In its theoretical nature, constructive

secession was used to advocate the suppression of human rights, which undermines legitimate

governance and sovereignty. The inherent problem with such an approach is that it does not

offer solutions but rather only foresees the deterioration of the system; to investigate possible

solutions the use of deserved sovereignty was applied. This approach advocates seven

intertwined criteria used to understand the nature of the process whereby internationally

administered territory progresses towards sovereign state.

Reformative secession was invoked to strengthen both — constructive secession and

deserved sovereignty. Usage of constructive secession principles by Russia to recognize

Abkhazia and South Ossetia illustrates a crucial point that such theoretical approaches can

be manipulated by powerful state actors to weaken an opponent or annex neighbouring

territory. Additionally, deserved sovereignty provides sub-state actors with the possibility

of increased autonomy to exert power internationally, which is unfounded and illegitimate.

The purpose of bringing constructive secession and deserved sovereignty together is to

circumvent the possibility of further territorial fragmentation leading to conflict.

Reformative secession, unlike constructive secession or deserved sovereignty, does not

focus on the issue of final status; the notion seeks to create a pragmatic structure through

which the people of Kosovo can function. It addresses the predominant parties and ethnic

23

majorities, people's who identify with being either Alabanian-Kosovar or Serb-Kosovar.

These identities then create the legal and administrative structures which operate under the

Republic of Kosovo, Kosovo as a regional affiliate of the Republic of Serbia or institutions

governed 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 general

principle can be applied. It is through this thought paradigm that any future status concerning

Kosovo must be considered. Furthermore, it will be exceptions and not the general principles

that determine the future status of Kosovo. Those sovereign states that do not recognize the

Republic of Kosovo do so because any form of recognition could ignite separatist entities

within their own territory. The Russian Federation has explicitly stated that any attempt

to focus on the uniqueness of the Kosovo case is merely an effort to circumvent international

legal structures. This represents the true nature of the dilemma, nationalistic dogma

intertwined with Realpolitik.

The current status of Kosovo rests with the EU and the ongoing Belgrade-Pristina

Negotiations initiated in March 2011. The matters being negotiated may seem otiose in nature

but this is a clear indication of what lays ahead. The EU has stated that it does not wish

to establish a “UNMIK II” and it is questionable as to what extent European Security and

Defence Policy (ESDP) will undermine Kosovo led institutions. Kosovo will test the EU's

ability to act as an impartial mediator with the risk of alienating one ethnic group over another

having the potential to stall any form of dialogue indefinitely. A resolution passed on the 10th

March 2011 in the Kosovo Assembly affirming their support for the Belgrade-Pristina

Negotiations was adopted under the condition that only technical matters and not the

sovereignty and territorial integrity of the Republic of Kosovo21

would be discussed.

Furthermore, the Austrian Foreign Minister Michael Spindelegger commented on the

negotiations as being progressive but the normalization of relations between the Republic of

Serbia and the Republic of Kosovo were still far in the future22

. Starting with the Kumanovo

Treaty of 1999, which brought an end to the Kosovo War, up to the present Belgrade-Pristina

Negotiations much has been achieved, but, for the Republic of Kosovo to be internationally

recognized as a sovereign state, many more obstacles are still to be surmounted. This rests

20

Sui generis understood as a legal term refers to case which is independent from categorization due to its

unique characteristics. 21

(March 11, 2011). Kosovo's Parliament Passes Resolution Backing Talks With Serbia. Retrieved 10 May 2011. 22

(March 28, 2011). Austrian Foreign Minister Lobbies for Recognition of Kosovo's Independence by Entire EU.

Retrieved 10 May 2011.

24

with the EU and its ability to find acceptable grounds of agreement between all parties

concerned, and the institutions of the Republic of Kosovo to establish a self-sustaining rule

of law, respect for human rights and an operative free market economy.

25

ADDENDUM

Illustration 1: The Ethnic Composition of Kosovo

Source: adopted from OSCE

26

Illustration 2: The Ethnic Composition of Kosovo in the 20th

Century

Source: adopted from Iricigor

27

REFERENCES

N.A. (March 28, 2011). Austrian Foreign Minister Lobbies for Recognition of Kosovo's

Independence by Entire EU. Retrieved 10 May 2011, from

http://www.emg.rs/en/news/serbia/151004.html

N.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). Kosovo's 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-Serbia

N.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 People's: A Legal Reappraisal. Cambridge

University Press.

Dorich, W., Jenkins, B., W., R., Dorich, A. (1992). Kosovo. Kosovo Ica.

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 Response's to

Kosovo's Declaration of Independence. Vanderbilt University, School of Law.

29

LIST OF ILLUSTRATIONS

Fischer, 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.png

Icirigor. (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