Prof. Dr. Arsim Bajrami

SOME CONSTITUTIONAL-JUDICIAL ARGUMENTS FOR THE INDEPENDENCE OF KOSOVO

The independence of Kosovo is in keeping with international justice and the new international order

The independence of Kosovo and her right to self-determination is in full accord with international justice and the processes of creating the new international order. The right of self-determination represents a pillar of democracy and the freedom of the individual and of peoples. The right of self-determination as a universal right is laid down in Article 1 of the UN Charter, where there is set out its mission to develop friendly relations between nations, on the basis of respecting the principles of equal rights and of self-determinations of peoples, and to undertake other adequate measures to strengthen universal peace. The modern concept of self-determination is laid down enduringly in the anti-colonialist practice of the United Nations. The United Nations Charter, by declaring the fundamental aims of the system of guardianship to include the promotion of the progressive development of the inhabitants of territories under guardianship in the direction of self-determination or independence, whichever may be suitable for the particular circumstances in which each territory and its people find themselves, and the freely expressed wishes of people pertaining to them. (Article 76(b) of the Charter of the United Nations.)

The principle of self-determination was also affirmed in the Declaration of the United Nations for Granting Independence to Colonised Countries and Peoples, approved in 1960. In Article 2 of this Declaration it is determined that all the peoples have the right to self-determination; on the basis of this right they freely determine their political status and freely achieve their own economic, social and cultural development. The right of self-determination has also found further international affirmation and recognition in the other two international conventions on human rights; the International Convention on Civil and Political Rights and the International Convention on Economic, Cultural and Social Rights, all approved in 1966.

In Article 1 of these conventions the following elements of the right of self-determination are set out;

1. All peoples have the right to self-determination; according to this right they freely determine their political status and freely achieve their own economic, social and cultural development;

2. For their well-being, the peoples may freely dispose of their natural wealth and resources, without prejudice in respect of any obligation arising from international economic co-operation, on the basis of the principle of mutual benefit and international justice.

3. The states signatory to the Convention, including also those responsible for administering non-self-governing territories, will promote the right of self-determination and will respect that right in accordance with the articles of the UN.

Further affirmation of the right of self-determination has been made in the Declaration of Principles of International Justice in Respect of Friendly Relations Between States, approved in 1970. In this Declaration there is restated the obligation of each state to respect the right of self-determination in accordance with the provisions of the UN Charter. The importance of this preamble appears from its preamble which says, ‘convinced that the principle of equal rights and self-determination of peoples constitutes an important contribution to contemporary international justice, its effective application is of crucial importance for promoting friendly relations between states, on the basis of the principle of sovereign equality.’

On the basis of the above-mentioned international acts, the right of self-determination has been recognised in respect of many oppressed peoples (even apart from the context of decolonisation), as in the case of Bangladesh, Biafra, Eritrea, Quebec, Taiwan, Somalia, East Timor, Palestine, Polisario etc. In most recent political history many states of South-Eastern Europe implemented their right to self-determination. In this context the German people achieved its right to self-determination in 1990, when the people of Eastern and Western Germany decided to reunite by pulling down the Berlin Wall. At the same time, their declarations of independence were also expressed by the former republics of the Soviet Union during 1989-1991. The Baltic Republics were the first, to achieve self-determination, restoring their independence. Former Czechoslovakia also passed through the same process, and from her two independent states emerged peacefully: the Czech Republic and Slovakia.

Finally, after the dissolution of the former Yugoslav Federation, her four federal units implemented their independence through self-determination and wars of independence.

Based on the legal international basis, Kosovo presents a typical case of self-determination. Self-determination is a legitimate right of Kosovo and has support in the socio-political entity of Kosovo. Kosovo was annexed by force by Serbia in 1918. During the Second World War, the Albanians of Kosovo joined the anti-fascist struggle only for the promise of national liberation and achievement of the right of self-determination. They articulated their fundamental will through the Bujan Resolution, which guaranteed Kosovo the right of self-determination, including the right to reunite with the mother state, Albania. However, this fundamental will was suppressed and in 1945, Kosovo was annexed to Serbia within the Yugoslav Federation. After the dissolution of the Yugoslav Federation, Kosovo, like other federal units, declared her will for independence through the referendum of 1991. This decision issued from the right to self-determination of the people of Kosovo in the circumstances of the dissolution of the former Yugoslavia. The Albanian people confirmed its will and powerful determination to achieve independence and self-determination, by means of the liberation war led by the by the Kosovo Liberation Army, and thousands of victims, who fell for the sake of the ideal of the independence and freedom of Kosovo.

Based on what was stressed above, it follows that the independence of Kosovo has its political-juridical basis in international justice and presents a typical case of the self-determination of peoples.

The independence of Kosovo, a legitimate right of the people of Kosovo

Kosovo presents a typical case of self-determination. Kosovo fulfils all the conditions for self-determination. She fulfils all the international conditions to function as a state in its own right. All the conditions laid down in international law are typical for Kosovo. Kosovo fulfils all the conditions, as regards territory, population and possession of effective government.

a. As regards the territorial criterion, Kosovo fulfils all the conditions laid down for the existence of a state in its own right. Kosovo is historically distinguished by a compact geographical territory, in which the Albanian people has lived for centuries as an autochthonous people and as one of the oldest peoples in the Balkans. The territory at least qualifies as a contender as a condition for the international recognition of Kosovo. Kosovo has possessed historically a distinctive territorial identity (Dardania, Vilajeti of Kosovo, KSA of Kosovo, the Republic of Kosovo) and has guarded the continuity of a precise geographical and defined administrative-juridical space with a particular politico-territorial identity and subjectivity and having its borders guaranteed and defended at the juridical and constitutional level. The present surface area of the territory of Kosovo is visibly greater than the surface area of many other states which are internationally recognised.

Recognition of the independence of Kosovo does not contradict the spirit of the Helsinki Final Act and does not represent a change of borders in Europe. After the dissolution of the Yugoslav Federation, the interfederal and administrative borders of Kosovo turned into state administrative borders. From the legal aspect, the borders of Kosovo were guaranteed by the federal constitution and the Constitution of Kosovo of 1974. Article 5 of the federal constitution determined expressly that the territory and borders of Kosovo may not be changed without her consent. Finally, even Resolution 1244 itself, and the Constitutional Framework, recognise the territorial compactness and inviolability of the borders of Kosovo. At present the territory of Kosovo is administered by the UN, through its civilian and military presence.

b. The ethnic reality in Kosovo proves that her territory, both historically and currently, has been inhabited by the Albanians as a people with absolute majority. Historical and ethnological sources show that the Albanians are an autochthonous people in Kosovo, much earlier than the Serbs, who have colonised Kosovo by administrative measures. The Albanian population in the lands of former Yugoslavia and her ethnic territory throughout history has lived and functioned as an ethnic community together with the rest of the Albanians in the Balkans. The Albanian people of Kosovo is part of the common Albanian trunk, which owing to historical conquests has been divided by artificial borders in many states of the Balkans.

Currently Kosovo, compared to other states which emerged from the former Yugoslavia, presents a homogeneous ethnic whole. The inhabitants of Kosovo are the ethnic Albanians, over 90%, while 10% are members of various minorities. Despite the attempts at ethnic cleansing and Serbian colonisation with which Kosovo was faced, she managed to safeguard the identity of the absolute Albanian majority. This was also proved in the recent events when after the failure of the policy of ethnic cleansing, the people of Kosovo impressively returned to their own ethnic lands and confirmed their autochthonous link with Kosovo.

c. Actual control over the territory, to be precise the existence of an effective government, represents another condition, which Kosovo now fulfils, following the foundation of the first democratic institutions. Being a territory under international administration, Kosovo today has established governing institutions, which are being assigned responsibility for governing the country. With the advance of the political process, these institutions will be assigned essential new responsibilities, which will be transferred from the international authorities step by step. Besides this, Kosovo is in the process of creating security and defence mechanisms, which are being enabled, so that upon final resolution of the status of Kosovo, they shall assume responsibility for protecting the constitutional order and territorial integrity of Kosovo. On this basis, Kosovo today possesses the an inherent capacity for government and from this angle she is limited only as regards authorisations and competencies, which are exercised by the international authorities on the basis of Resolution 1244.

d. The people of Albania has already confirmed its decision for independence, expressing its dissent from foreign rule and resisting to the point of armed conflict in order to realise its ideal. After the genocide carried out against the people of Kosovo, Serbia has lost every political, legal and moral right to be asked concerning Kosovo.

Independence does not represent any kind of concession to the people of Kosovo, or xxxx solution, but represents a real solution and a legal recognition of a factual reality, accepted by the Albanian people, as the overwhelming majority population of Kosovo.

However, independence as an irreversible process, represents a political process, the dynamic of whose achievement depends on national and international factors. The speed with which this process is actualised depends on how far the Albanians, as the majority population, will manage to show their state-forming abilities, by building effective institutions of government and building a democratic system, where the rule of law and protection of human and minority rights will be secured. The period of international administration will be a period of confirming the governing abilities of Kosovars, and the abilities of the Albanian people to protect minorities and secure their institutional integration. At the same time, this is a period of a multidimensional transition in Kosovo, and of the creation of a new reality. The dynamic of realising Kosovo’s independence depends on the speed with which these processes are put into practice. Thus, preliminarily, independence must represent an actual reality, and later receive legal recognition from the international community.

The independence of Kosovo – a solution in the interests of regional stability

The independence of Kosovo, as the political will of the majority population in Kosovo, represents a necessity of our time. The international community, but also other states in the region, need to understand that the option of independence for Kosovo does not represent an extreme solution and nationalistic programme. The independence of Kosovo is a well-considered solution in view of our times, which will directly solver the crisis in Kosovo and will put an end to the centuries-old Albanian-Serbian conflict and tendency to conflict between these two peoples. In the sense of lawful justice for national unity, the independence of Kosovo represents a compromise in the direction of a complete solution of the Albanian question in the Balkans. This solution would also lead to a long-term stability in the region. The independence of Kosovo does not harm the interests of any state in the region and does not endanger neighbouring states. It would create international balances which would assure mutual security in the region. This solution would stabilise Macedonia, which is currently challenged by inter-ethnic conflicts between the Macedonians and Albanians. Those voices are not accurate which say that recognising independence would destabilise Macedonia and exacerbate separatist tendencies in this republic. On the contrary, recognition of the state of Kosovo would ease inter-ethnic tension in this republic, and would create a spirit of regional good faith and co-operation.

As regards Albania, the independence of Kosovo would not imply her union with Albania. For the moment, this would represent a real solution which would determine a real position for Kosovo in the region. This neutral position would be a good basis for national and regional integration and would open the way to wider integrations, on the European level.

In recognising the independence of Kosovo, the international community will recognise a legitimate right of an autochthonous people, which seeks nothing more than the other peoples of Eastern Europe, which, thanks to the democratic processes after the fall of the Berlin Wall and the end of the Cold War, began their democratisation and the process of integration in the wider family of European peoples.

Recognition of the independence of Kosovo represents a logical process within the dissolution of the former Yugoslavia, and the creation of new states amid the ruins of this artificial state creature. After recognition of the independence of other federal units, upon recognition of the independence of Kosovo and Montenegro, new relationships would be formed in the Balkans which would create a climate of good faith and inter-ethnic neighbourliness.

It should by now be clear that every attempt to structure Kosovo within Yugoslavia, in whatever legal connection, is completely unacceptable, and this option, were it to gain legitimacy, could be the generator of a permanent crisis and of conflicts not only in Kosovo, but also in the region in general.

As regards the so-called project of conditional independence, which has been drafted by the Independent International Commission on Kosovo and is led by the former Public Prosecutor of the Hague Tribunal, Richard Goldstone, it could be accepted as a temporary solution, for a longer period of time, when the conditions for Kosovo’s full independence would be created. This project envisages four fundamental conditions for recognition of Kosovo’s independence: 1. The explicit renunciation of any change of Kosovo’s existing borders; 2. The constitutional guarantee of human rights for all the citizens of Kosovo and the offer of security for minorities, so that they may enjoy equal access and participation in the institutions of Kosovo, including the judiciary, police, elected posts, as well as the protection of their other rights as laid down in international acts; 3. Denunciation of acts of violence and the calming of internal and external conflicts and the discouragement of every attempt to achieve political objectives by the use of force and violent means, and 4. Dedication to regional co-operation, regional support and support for regional institutions (See: Why conditional independence, Independent International Commission on Kosovo, 2001, pp.26-27 & Kosovo Report, Independent International Commission on Kosovo, Oxford University Press, 2000).

The independence of Kosovo, a precondition for the democratisation of Serbia

Recognition of the independence of Kosovo is not a solution only in the interests of the Albanian people of Kosovo. It would also be in the interests of Serbia herself, if she aims at her democratisation and integration in Europe. A precondition for any kind of process of democratisation of Serbia is her liberation from the myth of Kosovo and Serbian nationalism, which was the generator of the inter-ethnic conflicts and of genocide, which the Serbian regime wielded against other peoples.

Accepting the reality that Kosovo was never part of her by the will of her own people, Serbia must understand that the sooner she is freed from the desire to keep hold of Kosovo by force under her rule, the sooner she will have the chance to democratise.

Accepting the reality that Kosovo can never be a part of Yugoslavia will help solve the Kosovo crisis and will be the basis for future co-operation between states.

In the current political context, the independence of Kosovo would be a factual solution, in the event of the independence of Montenegro. The success of the referendum for independence in this republic would ipso jure render null and void Resolution 1244, which is based on the fiction of the FR of Yugoslavia. Such a decision by Montenegro would certainly accelerate the achievement of independence for Kosovo and would imply the acceleration of this process on the part of the international community. In this case, the process of dissolution of Yugoslavia would conclude with the formal recognition of the independence of Kosovo, Montenegro and Serbia, and with their international acceptance.