Constitutional status of Kosovo

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The constitutional status of Kosovo has been the subject of repeated political disputes since the region was incorporated into Serbia in 1912. In 1999 it was made a protectorate under the full administration of the United Nations. The position of the international community is that Serbia remains the sovereign power,^[1][2] but, in practice, Serbia's ability to exercise governance in Kosovo is virtually non-existent and it is "obligated to discuss issues regarding Kosovo in quasi-diplomatic terms". As Christian Tomuschat puts it, "[Serbia]'s sovereignty over Kosovo has shrunk to a purely nominal title." ^[3]

The future constitutional status of Kosovo is the subject of ongoing UN-led negotiations involving the government of Serbia, the Kosovo Provisional Institutions of Self-Government and the international Contact Group. The Contact Group has set a target of finishing the Kosovo status process in the course of 2006^[4], although various public figures have speculated that this time frame could be delayed if Serbia decides to hold new national elections before the end of the year.

Contents 1 Status in pre-1945 Yugoslavia 2 Status in Communist Yugoslavia 3 Status under Slobodan Milošević 4 Constitutional status and the Kosovo War 5 Current constitutional status 6 Resolving Kosovo's final status 7 See also 8 References

[edit] Status in pre-1945 Yugoslavia

Following the first of the Balkan wars, which led to the dissolution of the Ottoman empire in 1912, and the Second Balkan War over the territory of Macedonia in 1913, Kosovo was governed, along with what is now the Republic of Macedonia, as an integral part of Serbia. This changed after the 1921 Constitution of the Kingdom of Yugoslavia (then known as the Kingdom of Serbs, Croats and Slovenes) established Yugoslavia as a unitary state. In 1922, 33 new administrative oblasts (provinces) ruled from the center were instituted. These bore no relation to the earlier divisions.

In 1929, the Kingdom was subdivided into nine new provinces called banovinas. Their borders were intentionally drawn so that they would not correspond either to boundaries between ethnic groups, or to pre-World War I state borders. Slight changes were made to the internal boundaries in the 1931 Constitution of the Kingdom of Yugoslavia. Most of Kosovo was allocated to the Zeta Banovina (Zetska banovina), with its capital in Cetinje, Montenegro. ^[5] The banovinas all had a similar constitutional status, without special privileges or rights of autonomy.

[edit] Status in Communist Yugoslavia

The first Constitution of the Federative People's Republic of Yugoslavia (later renamed the Socialist Federal Republic of Yugoslavia) established Kosovo and the northern region of Vojvodina as autonomous provinces within the People's Republic of Serbia. It also promoted the Vardar region of southern Serbia to the status of a separate republic, the People's Republic of Macedonia. The constitution, adopted on January 31, 1946, stated that "The People's Republic of Serbia includes the autonomous province of Vojvodina and the autonomous Kosovo-Metohijan region." It did not spell out the rights and scope of the autonomous provinces, instead stating that this was a matter to be "determined by the constitution of the [parent] republic." ^[6]

The later Constitution of the Socialist Federal Republic of Yugoslavia, adopted on April 7, 1963, again provided for republics to "found autonomous provinces in accordance with the constitution in areas with distinctive national characteristics or in areas with other distinguishing features, on the basis of the express will of the population of these area." Within the Socialist Republic of Serbia, "there are the autonomous provinces of Vojvodina and Kosovo and Metohija, established in 1945 by decision of the People's Assembly of the People's Republic of Serbia in accordance with the express will of the population of these areas." The details of the rights and scope of the provinces was, again, reserved to the republics' constitutions. ^[7]

The 1974 Yugoslav Constitution, at the time the world's longest, greatly changed the constitutional setup within Yugoslavia. It increased the autonomy of Kosovo and Vojvodina, recognized Kosovo's Albanians for the first time as one of Yugoslavia's constituent peoples, and gave both autonomous provinces de facto veto power in the Serbian and Yugoslav parliaments as changes to their status could not be made without the consent of the two Provincial Assemblies. It also granted equal status to the Serbian, Albanian and Turkish languages and alphabets within Kosovo.

The 1974 Serbian constitution, adopted at the same time, reiterated that "the Socialist Republic of Serbia comprises the Socialist Autonomous Province of Vojvodina and the Socialist Autonomous Province of Kosovo, which originated in the common struggle of nations and nationalities of Yugoslavia in the National Liberation War [the Second World War] and socialist revolution..." The separately promulgated Constitution of the Socialist Autonomous Province of Kosovo declared that

The Socialist Autonomous Province of Kosovo is an autonomous, socialist, democratic, socio-political and self-managing community of working people and citizens, equal Albanians, Montenegrins, Muslims, Serbs, Turks, and members of other nations and nationalities and ethnic groups, based on the power of and self-management by the working class and all working people. The Socialist Autonomous Province of Kosovo is a part of the Socialist Republic of Serbia and the Socialist Federal Republic of Yugoslavia.

The expansion of Kosovo's powers caused considerable discontent among Serbs, and Serbian politicians campaigned for a reversion to Serbian supremacy over the autonomous provinces. It became a rallying cry for a new generation of Serbian politicians. During the 1980s the moderate Serbian communist politician Ivan Stambolić, who became President of Serbia, urged the other republics to agree to a reduction in provincial autonomy.

Stambolić managed to win over the League of Communists of Yugoslavia to his position on this matter at the Thirteenth Congress of the LCY, held in 1986, and then set up a commission to work out the details of constitutional reforms. However, Stambolić was deposed by his erstwhile protégé Slobodan Milošević in 1987, who had used the issue of Kosovo to boost his political support.

[edit] Status under Slobodan Milošević

The much harder-line Milošević pushed for a tougher policy towards the Kosovo Albanians. On 28 March 1989 he had the Serbian Constitution amended to give the Serbian Assembly exclusive rights to decide on the constitutional structure of the country, overturning the veto right of Kosovo and Vojvodina. When the proposed amendments were put before the Kosovo Assembly, the majority of the Assembly's members abstained in protest and the vote failed to reach the necessary two-thirds supermajority. The Speaker of the Assembly nonetheless declared that the amendments had passed and they were duly enacted.^[8]

The following year, a new Serbian Constitution was enacted that drastically reduced the powers of the autonomous provinces, reserving many formerly autonomous rights to the central authorities in Belgrade. It also changed the name of Kosovo from the Socialist Autonomous Province of Kosovo to the Autonomous Province of Kosovo and Metohija, using the Serbian name for the western part of the region.^[9]

The 1990 constitution was strongly resisted by Kosovo's Albanians, who set up a "shadow" government to parallel the official Serb-dominated establishment. The Albanian-dominated Kosovo Assembly passed an unofficial resolution declaring Kosovo an independent entity within Yugoslavia, equivalent in status to the existing republics. A few days later the Kosovo Assembly was formally dissolved by the Serbian parliament on 5 July 1990, all its laws declared invalid and its legislative functions transferred to the Belgrade legislature. On 22 September 1991, the deposed Albanian members of the Kosovo Assembly met secretly in Pristina to declare Kosovo an independent sovereign state, the "Republic of Kosova". However, Albania was the only country to recognize this declaration of independence.^[8][10]

Kosovar independence was also not supported by the international community, which had maintained a consistent policy since 1991 of upholding the existing borders of the individual republics of Yugoslavia. On 10 October 1991 the CSCE (now the OSCE) warned that member states would "never ... recognize any changes of borders, whether external or internal, brought about by force." The United States, the European Community and the Soviet Union issued a joint statement on 18 October 1991 reaffirming these principles. ^[11]

The same set of principles remained the cornerstone of international policy towards the former Yugoslavia throughout the Yugoslav wars. Thus, for instance, the international community insisted on retaining Bosnia and Herzegovina and Croatia as unified states, denying recognition to the breakaway Republika Srpska and Republic of Serbian Krajina, as well as intervening in the Republic of Macedonia in 2000 to end a conflict between that state's government and ethnic Albanian separatists.

[edit] Constitutional status and the Kosovo War

Kosovo's constitutional status was a key issue in the political violence that presaged the Kosovo War of 1999. The ethnic Albanian Kosovo Liberation Army sought to obtain independence for Kosovo, launching attacks on Serbian and Yugoslav security forces in Kosovo. The Serbian and Yugoslav governments strongly opposed this and instituted an increasingly severe military crackdown on Kosovo Albanian separatism, which eventually led to NATO launching a campaign of air strikes.

The international community also did not support independence for Kosovo at this stage. The United Nations Security Council passed UN Security Council Resolution 1160 on 31 March 1998 urging the parties to reach a peaceful settlement and rejecting any unilateral attempts to redraw borders, instead "affirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia." The same principles were reaffirmed in a high-level meeting during the 1999 NATO bombing campaign, when the G-8 foreign ministers adopted a policy of establishing "an interim administration for Kosovo ... under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia". ^[12]

On 2 June 1999, a joint Finnish-Russian team headed by former Finnish president Martti Ahtisaari presented a set of proposals to President Milošević. These included a commitment to establish "an interim political framework agreement providing for substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region." Under severe pressure from the ongoing NATO bombing, Milošević agreed to withdraw Yugoslav forces from Kosovo and permit the establishment of a UN-led administration in the province, with security to be provided by a NATO-led force (KFOR).^[13]

[edit] Current constitutional status

Kosovo's current constitutional status was established by the United Nations in UN Security Council Resolution (UNSCR) 1244, adopted on 10 June 1999.^[14] The Security Council placed Kosovo under the temporary administration of the United Nations Mission in Kosovo (UNMIK), under the leadership of a Special Representative of the Secretary General. It also explicitly upheld the existing sovereignty of Serbia over Kosovo, "reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and annex 2 [the Finnish-Russian proposals]." It also established a requirement that the post-conflict constitutional process must take full account of "the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia".

This was chiefly intended to make the agreement acceptable for Milošević, enabling him to claim that he had not lost Kosovo after all. In a public speech on 9 June 1999, he declared:

We have not given up Kosovo. The Group of Eight most developed countries of the world and the United Nations guarantee the sovereignty and territorial integrity of our country. This guarantee is also contained in the draft resolution. The Belgrade agreement has closed the open issues of the possible independence of Kosovo at the time prior to the aggression. The territorial entirety of our country cannot he threatened ... the political process, which will be based on the principles which stem from previously conducted discussions [is] also equally based on the sovereignty and territorial integrity of our country. This means that only autonomy, and nothing else outside that, can be mentioned in this political process.[15]

The reality on the ground was rather different, as Ylber Hysa has noted. Although "Resolution 1244 respects the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, including Kosovo", and even provided for Serbian troops to be stationed in the province, on the ground "certain territories are under the full control of KFOR and the international administration" without any Serbian involvement.^[16] The severely circumscribed control exercised by Serbia in Kosovo has led many commentators to describe the nature of its sovereignty as purely "nominal".^[3]

William G. O'Neill comments that the resolution's wording was also intended "to reassure Republic of Macedonia, which has a substantial Albanian minority, that its territorial borders were not at risk. It also can be seen as a warning to Albania not even to think about any territorial expansion to create a 'greater Albania'." ^[17]

On 15 May 2001, UNMIK enacted a "Constitutional Framework for Provisional Self-Government."^[18] Although it provides a constitutional framework, it is not a constitution,^[1] and is deliberately nonjudgmental on the question of sovereignty, as UNMIK itself does not have a role in the determination of Kosovo's final status.^[19] It defines Kosovo as "an entity under interim international administration" and "an undivided territory".

Crucially, Kosovo's own institutions were specifically barred from making any unilateral decisions about the province's status. The Constitutional Framework states that the Provisional Institutions of Self-Government (PISG) "shall not in any way affect or diminish the ultimate authority of the SRSG [Special Representative of the Secretary General] for the implementation of UNSCR 1244". The Kosovo Assembly is in effect prohibited to make any decisions or declarations on the future status of Kosovo ^[20] There are no Ministers for Foreign Affairs, Defence, Justice or Internal Affairs, all these functions being reserved to the authority of the SRSG.^[1]

The 2003 Constitution of the newly created state of Serbia and Montenegro officially acknowledged Kosovo's new interim status, describing Serbia and Montengro as "the state of Montenegro and the state of Serbia which includes the Autonomous Province of Vojvodina and the Autonomous Province of Kosovo and Metohija, the latter currently under international administration in accordance with UN SC resolution 1244."^[21] In 2006, Serbia drafted a new constitution that again referred to Kosovo as an integral part of Serbia.^[22] Currently, the government of Kosovo has accepted that the province is not a sovereign entity, but has committed itself to seeking independence from Serbia.

Kosovo's unresolved status has caused significant problems. As well as the ongoing political tensions caused by the dispute, the fact that Kosovo is still regarded in law as being part of Serbia has caused significant difficulties in achieving economic development. The province uses the euro, rather than the Serbian dinar, as its currency. Its uncertain legal status has prevented it from accessing lending from International Financial Institutions such as the World Bank. UNMIK was given exclusive rights to manage Kosovo's economic affairs and stated its intent in the Constitutional Framework to establish a market economy. Prior to 1999, much of Kosovo's economy had been controlled by the state. All publicly owned enterprises were owned by the Yugoslav government or the Serbian state, both governed from Belgrade. When UNMIK began implementing privatization of assets that it technically did not own, Serbs with interests in the companies subject to privatization sued first UNMIK and then the UN in New York.^[1]

[edit] Resolving Kosovo's final status

Final status talks began in February 2006 with the aim of completing them by the end of the year.^[4] Early on it became evident that the negotiating positions of the Serbian and Kosovar sides remaining far apart. Kosovo's prime minister, Agim Çeku, has stated that his government will accept nothing less than independence and will not contemplate partition.^[23] For its part, the Serbian government of Vojislav Koštunica has stated that it will give Kosovo full autonomy but will not accept independence.^[24]

The Contact Group's position, as stated in multiple statements by the Contact Group and representatives of its individual member states, is that Kosovo "must remain multi-ethnic and the settlement must be acceptable to the people of Kosovo. Additionally, there will be no return of Kosovo to the pre-1999 situation, no partition of Kosovo and no union of Kosovo with any other, or part of another, country."^[19]

It is generally expected that the ongoing talks will lead to some form of independence under international supervision,^[4][25] though Serbia and Russia have both insisted that a solution imposed without the consent of Belgrade would be unacceptable; Russia has suggested that if it is not pleased with the outcome it may use its UN Security Council veto to block a new Security Council Resolution on Kosovo.^[26]

[edit] See also

Serbian constitutional referendum, 2006

[edit] References