Serbia has no legitimate claim to Kosova
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 (ie 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 (ie 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 re-established 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—ie
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 occupation.
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 jest 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, ie 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 (within Yugoslavia's constitutional 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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