bosnia report
New Series No. 3 March - May 1998
 
Serbia Has No Legitimate Claim to Kosova
by Branka Magas

A. Kosova's prerogatives under the former Yugoslav constitution fully replicated those of the six republics

1. Kosova had its own territorial identity, its own capital city, its own government responsible to its own assembly, its own constitution and constitutional court, and its own system of justice.

2. It had complete control over its internal affairs, including possession of its own police and state-security service as well as its own Territorial Defence forces

3. It was a member of the Federation on a par with the other republics and its representative was an equal member of the Yugoslav state presidency (i.e. Yugoslavia was a federation of six republics AND two provinces).

4. Its full autonomy within the Yugoslav Federation was reflected also in the fact that no intervention in its internal affairs, by either Serbia or the Federal state, could legally take place without its permission. Equally, no change of its borders or its status within the Federation could be made without its (freely expressed) will.

B. Difference between Kosova and the republics in former Yugoslavia
1. The only difference between Kosova and the republics was that Kosova was formally not a republic but 'only' a province. Not being a republic meant that it had no right to secede from Yugoslavia (i.e. join Albania). It consequently had to be included in one of the republics: in 1945, after some hesitation, it was placed within the republic of Serbia. As a result of this inclusion Serbia was constituted as a complex rather than a centralised republic, differing in this regard from the other five.

2. Kosova's integration into Serbia amounted to its delegates taking part in the workings of the Serbian republican assembly and the Serbian republican Communist party organisation; but this participation was limited to issues affecting the republic as a whole and did not include matters of concern purely to Serbia Proper (ie. the territory of the republic of Serbia minus the territories of Kosova and Vojvodina), so that Serbia Proper functioned as a separate unit from Kosova and Vojvodina.

C. Briefly on the history of the Kosova-Serbia-Yugoslavia relationship
1. Kosova came under Serbian rule in 1912 not by the free will of its people, but as a result of conquest subsequently sanctioned by the European Powers. (This was true also of Macedonia.) Soon after, in 1915, Serbia itself became a conquered land. Although in 1918 Serbia reüestablished physical control over Kosova (and Macedonia), its own separate existence was brief as it soon became part of the Kingdom of the Serbs, Croats and Slovenes. The first (Royalist) Yugoslavia fell apart in 1941 and was in 1945 replaced by Federal Yugoslavia.

2. Yugoslavia as constituted in 1945 - i.e. as specified by its own constitution - derived its legitimacy not from Royalist Yugoslavia, but from the National Liberation War (NLW) through which it freed itself from foreign occÌÌÌÌÌÌÌÌÌÌÌÌÔ upation. In this second Yugoslavia, which lasted until 1991, Kosova became an autonomous political entity. According to the Yugoslav constitution, moreover, Kosova's autonomy was not a gift of Serbia or of Yugoslavia, but derived from its population's participation in the NLW. Kosova's relationship to Serbia was thereby radically altered, as it now had its own constitutionally defined political legitimacy resting upon popular consent.

3. In 1989, however, Serbia under Milosevic forcibly stripped Kosova of its autonomy. This happened in the following way: Kosova was placed under a state of siege, and its assembly - meeting in emergency session - was ringed with tanks, while MiG jets flew over the building. Outside the building many thousands of Kosovars demonstrated against Serbia's action. The Serbian authorities have since claimed that the assembly voted in favour of Kosova's full integration with Serbia, but Kosova officials deny that the decision had the necessary majority.

4. Kosova's assembly, indeed, met in strength soon after and proclaimed Kosova a republic within Yugoslavia, or, in the event of the latter's break-up (which was now on the horizon), an independent republic. This decision was subsequently validated by a popular referendum.

D. It is important to note that:
1. Serbia's suspension of Kosova's constitution (autonomy), executed without and against the legally articulated will of the people of Kosova, was an illegal act, contrary to the existing Serbian, Kosovar and Yugoslav constitutions. It was ipso facto an act of annexation.

2. The Yugoslav Federal authorities, in so far as they actively aided or passively permitted this annexation, were also in breach of the Yugoslav constitution.

3. Kosova's altered status within Serbia (specified by the 1990 Serbian constitution) was never constitutionally validated by an act of the Yugoslav Federation, i.e. it never entered into the Yugoslav Federal constitution.

4. Such alteration of the Yugoslav constitution became in any case impossible, since with the closure of the Kosova assembly by the Serbian authorities all Federal bodies (the two Federal assemblies, the Federal government and the Federal presidency) lost the power to enact laws.

5. The Yugoslav Federal constitution, and Kosova's autonomous prerogatives, consequently remained in force until Yugoslavia's formal break-up in 1991.

6. Kosova's present status is not regulated by the constitution of the Serbian-Montenegrin federation ('FRY') either, since that constitution does not yet exist as an integral and consistent body of primary laws valid for the whole of 'FRY'. The Serbian constitution, indeed, differs substantially from that of Montenegro and from the (as yet nominal) constitution of 'FRY'. For example, the Serbian constitution gives the Serbian president exclusive command of the Serbian armed forces, while according to the 'FRY' constitution the 'FRY' (hence also Serbian) armed forces are under the supreme command of the 'Federal' president assisted by the presidents of Serbia and Montenegro.

E. Kosova's claim to independence has the same legal validity as that of the former republics

1. Serbia's suspension of Kosova's autonomy was not legalised by the former Yugoslavia, nor could it have been, given that this would have required Kosova's free agreement which was never given. Although Yugoslavia has disappeared, its constitution still nevertheless defines the legal status quo ante.

2. This means that Serbia's claim to Kosova remains to be legally established. This claim cannot refer to the initial act of conquest (since that was invalidated by the former Yugoslav state), nor to Serbia's 1990 constitution (which lacks all legal validity).

3. By contrast, Kosova's claim to independence from Serbia is far stronger, since:

a) it came in reaction to an illegal act of annexation;

b) the independence decision was taken by the (withiÌÌÌÌÌÌÌÌÌÌÌÌÔ n Yugoslavia's constitu- tional terms still in force at the time) legally elected assembly;

c) this decision was subsequently validated by a popular referendum. Kosova's claim to independence, in other words, rests on the same foundations as those of Slovenia, Croatia, Bosnia-Herzegovina and Macedonia - all of which have been recognised as independent states and Yugoslavia's legal successors.

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