1999 the Dialogue Was Possible_Helsinki Charter

8/10/2019 1999 the Dialogue Was Possible_Helsinki Charter

1/56

nder the auspices of Helsinki Committee for

Human Rights in Serbia,

in

November

5

and

nd

in

Beigrade was organized a round

table on

Kosovo

crisis. or the second time

in R

Yugoslavia the first was held in June 1997) the

meaningful discussion among

distinguished

Serbians

and

ethnic Albanians took place upon the

complex issue that had intensified the crisis of

Second Former) Yugoslavia and now brought it to

an end. A few foreign guests part icipated

in

the

discussion. This 1ime also, a group of people of

good will from both sides shown in their speeches that a tolerant dialogue was possible, that any ef-

fort to rebuilt mutual confidence was not in vain, and

that

their common commitment

in

active

par-

ticipation of international community

in

overcoming the crisis was well founded.

We

opine

that

some excerpts from their speeches are worth publishing even today,

and

for wide

circle of readers, the more so their statements

and

considerations has actual significance, while some

participants

in

the dialogue still has important role

in

solving the

Kosovo

crisis.

ditor


2/56

3 No Solution Should

Be

Regarded as a Recrpe

/ Sonja Biserko

Courage in the C/vilSense Aaron Rhodes

5

The

Principle

ofSeif-Determination and the Kosovo

Problem

/

Ljubivoje Acimovic

9 Self-Determinat/on: the Key and Means for

Creat/ng

an

Open Society /

Zejnulah

Gruda

1

Human Rights Court is Indispensable/ Thomas Markert

14 Right to

Seif-Determination

of

lbr:rnkm

People in Kosovo: InternationalLegal

/ustifiability

/Mr

sei Blerim Reka

17 Helsinki r i n c i p l e ~ Minorit/es and Seif-Determination/ Branko Milinkovic

2 Autonomy - Generator ofeven Deeper

Crisis

Prof

dr lsmet

Sa/ihu

Equ/table

-

Federal Unit Status

o

Kosovo/ Novak Pribicevic

3

Process

o

Desintegrat/on

is

Yet

to

Come

/

Veton

Suroi

25

Danger

o Political Improvisation/ Slobodan Samardlic

8

Unresolved Alban/an /ssue

-

Source of he

Balkan Conflict /

Christopher

Lamb

9 Self-Determinat/on as a Peaceful Process Milan Sahovic

3 Re-Federalization

of

he

FR Yugoslavkr - an

Interim

Solution/

dr Gazmend

Pula

33 Controversies and Chalenges ofSelf-Determinat/on of

Peop es

/ Milenko Markovic

36 New Status

Cannot Be

Inferior to the Old

One / IFehmi Agani

1

38

Consensus or the

Democrat/c

Serbia /

livan

Berisavljevic

39

The Problem is Primarily the lssue of

Democracy

/Konstantin

Obradovic

4

A Direct Question ofWar and Peace

/

Yber

Hysa Kaci

43 .

Compromise by the

So-Called

Interna Democrat/c

Arrangement/S/obodan

/nie

5 Without Legal heritage of he FR Yugoslavia / Behlul Beqai

46 ls the Example

of

South Tyrol Applicabe to Kosovo?/

Nina

Dobrkovic

5 Curb the Balkan National/sm I

Sonja

Biserko

5 Kosovars

Moum

Death

of

Agani /

Melissa

Eddy

Helsinki

Charter

Special

English

Edition

Eelgrade

August

1999

ulletin

of the Helsinki Committee for Human Rights

in

Serbia Zmaj Jovina

7

Beigrade

Tel/fax: 637-542 i 639-481

E-mail: [email protected]

Visit our web-site: www.ihf-hr.org/serbia/index.htm


3/56

ugust

999

n

interpreta

not correspond the reali

. This problem


4/56

be viewed through the real relations between

peoples and states as

as

of changes international relations.

That

is

no be regarded

as

a recipe rather as a for ponder-

ing any future solution experi-

ences of the others should be also taken

account. 1

also like to underscore that

this

is

not an exclusively Serbian or

issue. By its very nature and complexity it is

currently

tobe

treated

as

the Balkan and

regional issue. Even a European one. Hence

both Albanians and Serbs must be sensible.

They should also be aware that international

community has made enormous efforts and

showed its goodwill to assist Kosovo

solution-finding process. the success of

their efforts depends on us. To provide a

he Helsinki Federation tries to encourage

work on this project to expand interest for

it. Our Federation currently embraces 36

humanitarian organizations Europe the for-

mer Soviet Union and America. As

know the Helsinki Federation was established

in 1982 to provide certain protection to

organizations for civil and human rights

try to monitor the observance of the Helsinki

Final ct As members of our organization

operate almost all countries of this region

we could play a important role the

sense that we could encourage the reconcili-

ation of ethnic groups Balkan peninsu-

la

1 think we take

in

confer-

4

basis for a genuine discussion at this confer

ence it was necessary to prepare documen

tation and analytical publications. made a

concerted prepare this occasion

three publications. The first publication

in

and Serbian represents our attempt

acquaint the participants the past and

present European solutions related to self

determination and international standards crit

ical to the solution of this issue. The second

publication contains proposals for Kosovo

autonomy since 1972 today

as

as the

collection of the iatest documents on the

Kosovo crisis

as

adopted by international

community. expect these publications to

be used on a long-term basis

in

all the expert

and political discussions on the self-determi

nation problems.

ence in the fact that it

is

being held

as

it sets

an example Helsinki Committee

in

Yugoslavia

as an

independent private non

governmental organizations can open up cer

tain existing potential strengthen the confi

dence and create better conditions enabling

successful denouement a specific this

case political problem. can be achieved

if we enjoy the and

we to get that support order to a

peacefui solution. The work of Helsinki

Committees

in

this region

is

often commend-

able they are very brave the civil sense

and that kind of courage

is

needed

region-wide.

Helsinki Charter - Special Edition


5/56

he principle of self-determination peo

ples

is

a norm strictly fixed once and

for all and applicable to all situations. Since it

was first worded

in

the mid-1 it

has seen a considerable ~ v 1 1 u 1 1 1 v 1

with regard its nature (from a political

proclamation a codified principle interna-

tional law), its substance (from a one-dimen

sional, outward principle to a two-dimensionai

principle extending to the national plane, that

is

the political and legal status of a people

within a given State), the geo-political focus of

its application (from European to non

European and back to European territories),

and its historical function. The principle has,

therefore, passed through four stages

in

its

evolution and today, in the post-cold war era,

it gives manifestations both of its complex

international law substance and the contradic

tions of its historically belated pursuit

in

some

parts of Europe.

The principle of self-determination of peo

ples emerged

in

the middle of the 19th centu

ry

as

a political principle of nationality, to

serve the constitution of nations,

as

charac

teristically expressed in the political slogan of

Giuseppe Mazzini to every nation its State, to

every State its nation

and for the first time

legally elaborated

in

the works of Pasquale

Manzini. In the early 20th century, or more

accurately, towards the end of World War 1 it

was explicitly proclaimed as the political prin

ciple of the right of self-determination of peo

ples (Lenin

in

1917, Wilson

in

1918), thus

marking the anti-imperialist and national liber

ation stage of its evolution

in

Europe.

Only in the wake of World War II when it

ugust

1999

was built into the United Nations Charter

in

1945 and the International Covenants on

Human Rights (1966), the right of self-deter

mination of peoples became a principle

international law. During that historical stage

its function was primarily anti-colonial and

thus of a broader, universal scope so that

it

is

seen as an integral part of the body

of imperative rules of international law

cogens . Finally, in the 1970s, with the UN

Declaration on the Principles of International

Concerning Friendly Relations and Co

operation of States (1970) and especially

CSCE Final Act (1975), the focus of the socio

political function of this principle shifted

towards anti-hegemonic and anti-totalitarian

plane. However, as this stage of the imple

mentation of the principle drew to its end, its

above mentioned contradictory and excessive

form began to manifest itself in certain

instances. The contradictory nature of the lat

est stage

is

reflected

in

the fact that

in

parallel

with overall integrative trends, notably in

Europe, there are disintegrating acts of some

ethnic entities, that

is

peoples

in

relation to

social and legal entities, which they belang to

on the one hand, and on the other their simul

taneous aspiration to join the ongoing inte

grative processes

in

the wake of winning their

independence.

The specific experience

of

the Yugoslav cri

sis, that is above all, its acute stage, which

culminated in the disintegration of the former

Yugoslavia,

is

particularly instructive and wor

thy of attention. Yugoslavia began to disinte

grate precisely under the political mantle of

the principle of self-determination of peoples

and especially the right of secession recog

nised thereby. In the name of this principle the

aim of uniting all members of a people

in

one

5


6/56

state was thus promoted

on

one side, and

on

the other the secession from the existing state

was claimed and carried out. The response to

this secession was then counter-secession

on

the same grounds and thus the state col

lapsed.

In

the name and

in

defence of the

right of self-determination armed force was

used both ways and under such banner the

war was waged with accompanying large

scale ethnic cleansing.

The shortcomings manifested during the

pursuit, that is exercise of the right of self

determination

in

the course of the Yugoslav

crisis now continuing in Kosovo), deserve to

be noted however briefly.

The right of self-determination was, to all

intents and purposes, reduced only to the

right of secession although from the very

beginning of its codification by international

law

in

the International Covenants of Human

Rights of 1966 there was built into it, in addi

tion to the external secession and indepen

dence), an internal component relative to the

legal and political status of peoples autono

my, self-rule etc.)

as

subsequently specified

also by the Declaration

on

the Principles of

International Law Concerning Friendly

Relations and Co-operation of States adopted

by the UN General Assembly in 1970 and the

Declaration of Principles Guiding Relations

Between States in the CSCE Final Act of 1975.

,The simplified and one-sided reduction to

secession as a general approach

is

at vari

ance,

as

it has been mentioned, with modern

integrative trends.

The right of secession, derived from the

right of self-determination, was exercised

applying the automatic effect of unilateral

decision-making. Moreover, the exercise or

denial of the right of self-determination relied,

as a rule, on force hence the armed conflicts

and war

in

the territory of the former

Yugoslavia.

The institute

of

protection of nationar

minorities, that

is

rights the status of

minority peoples, was accorded a proper

place and application efforts to solve the

Yugoslav crisis. The same holds true of the

general norm of protection of human rights,

6

the negation of which took the extreme form

of so-called ethnic cleansing of certain territo

ries.

The international community - both region

ally and globally - proved insufficiently pre

pared and dextrous to prevent excesses

in

the

actions conducted in the name of the princi

ple of self-determination. On the whole, the

moves with which the international communi

ty sought to help to overcome the crisis, to

prevent, and then put an end to the armed

conflicts and bring about a political solution

were, more or less, belated, irresolute, incon

sistent and inadequate.

This experience makes it necessary to re-

examine prin-

self-determination to the

new conditions, or rather, to adjust both its

substance and the manner of its pursuit. The

basic moves

in

this direction should

be in

par

ticular as follows:

a

the principle of the self-determination of

peoples should be interpreted and applied

its integrity, which means that consideration

needs to e given both to the external and the

internal forms of self-determination pursuant

to the provision

on

the right of people to

freely determine their internal and external

political status

and to freely pursue their

political, economic, social and cultural devel

opmene Declaration of Principles Guiding

Relations., CSCE Final Eighth Principle).

Furthermore, it also presumes the obligation

to behave

in

accordance all relevant

norms of the legal order when exercising

the right of self-determination.

b

The part relative to secession should be

applied restrictively, seeking

strike an adequate balance inter-

ests underlying the request

the interests to preserve

of the concerned.

should be a valid option

forms of the exercise of the

mination have been exhausted satis-

factory results.

c The act of secession,

place, should be undertaken

agreement of the parties



7/56

that

force and violence.

Proper protection and promotion of

human rights and democratic institutions

suppresses incentives

secession ethnically complex states.

Lastly, it

is

utmost importance that

international United

Nations and then, if the case concerned

is

Europe - the OSCE, effectively supervise the

existing international order. Secondly, the

norms and their codification

elaboration, better definition and

the principle self-determination of peoples

and

an

indispensable regulation the proce

its application. lnsofar

as

the elabora-

and definition the substance

this principle are concerned, one needs first

better define the subjects,

is

the hold-

ers of the of self-determination, and the

relationship between the right of secession

the obligation respect principle of

territorial

the right of self-determination

is

con-

relation and the context

it

is

necessary indicate

aspect, also some

a specific

application this principle

problem, as deriving from the experience

lessons this crisis has taught us so far.

principal actors

be accorded

in

our con-

siderations: Yugoslavia Serbia), the

Kosovo Albanians and the international man-

or, other words: the Serbian side,

ugust

999

the Albanian side and the international factor).

- First, one cannot defend the status quo

as

has been the case, claiming

highest international standards

human rights are implemented

in Kosovo it

is

obvious that the question

raised actively there

is

the exercise of the

a people ethnic Albanians) to self-determi-

nation,

is as

has already been said, an

its

requested

nation.

exercise its right of self-determi

political agenda

and has been for

is thus objectively on the

Serbia and Yugoslavia -

some time - one

... ....... .

' '

its existence

phraseology the highest rights

standards Kosovo. One must admit its exis

tence and undertake its adequate solution. lt

also needs to be noted - contrary the

thesis about highest international stan

oards - other forms of human rights Kosovo

are enjoyed

in

a satisfactory manner

either, largely due to the salient question

political status of the Kosovo majority pop

ulation;

- moreover, secession a view to creat-

ing an state or joining another

state constitutes one of possible

exercise of the right of self-deter

a claim is not unlawful p r s

be as a crime. The lat-

can be used

means the pursuit

goal are used;

- on the hand, opposition to

an

active

armed insurgence - a legitimate right of any

State - must be within the limits of the modern

international order, which means, first and

7


8/56

foremost, the respect for, and compliance

with the norms of international humanitarian

law and international protection of human

rights and fundamental freedoms, equally in

relation to those participating in armed opera

tions and the civilian population

in

areas

affected by armed conflicts;

- lastly, the Kosovo crisis is not

an

internal

affair of FR Yugoslavia only. lts international

dimension derives from human rights and

safeguarding of international peace and secu

rity. Therefore, no referenda can deny the

international community its competence to

seek solutions to all crises, including this one,

which can have a destabilising international

effect and bring about grave violations of

internationally protected human rights.

b) The Kosovo Albanians:

- First, one needs to proceed from the fact

that Kosovo Albanians have an indisputable

right to put forward their political request for

self-determination and to politically fight for

the exercise of this right;

-

in

principle, the Albanians and any other

ethnic group or people) can request any

form of self-determination and it

is

a matter of

their choice and the existing conditions what

they will ultimately achieve;

- the right of self-determination should not

be exercised so that an)other people s), that

is the State concerned

as

a whole, suffer a

damage far exceeding the benefit the

people

exercising that right would reap. lt

is

logical

and fair to assume this limiting, or rather, bal

ancing factor;

- all means of political struggle are admissi-

. ble in pursuit of the exercise of the right of

self-determination, both existing

institutions of the system and non-parlia-

mentary means, including

organisations;

- recourse to armed struggle the exer-

cise of the right of self-determination is o ~

admissible unless it is necessary as defence

against violence and force

the authorities or other

that case, all parties

and

8

- the struggle for self-determination must

take note also of the interests of the interna

tional community, which relate above all to the

safeguarding of the international peace and

security, and human rights and fundamental

freedoms

in

consistence with the fundamental

acts of the United Nations order.

The international -

notably

the United Nations and relevant regional

organisations operating under their mandate:

- First, it needs to be pointed out that an

active role and direct presence of the interna

tional community in Kosovo are indispens

able, and over a relatively lang period of time

at that,

as

the normalisation of the situation

and achievement of the definitive solution will

undoubtedly take quite some time; needless

to say, the international community will have

to keep

an eye on possible changes and

ad

just its role and commitment to them;

- if the ongoing process of the settlement of

the Kosovo crisis is disrupted, it is fundamen

tal that the international community takes a

timely, and even a preventive action against

anyone, against any act of non-compliance

with concluded agreements, that

is

decisions

of the Security Councii;

- the domestic public at large, especially in

Kosovo, must be regularly and truthfully

informed about the state affairs and every

step undertaken with regard to Kosovo, both

internally and internationally; it is therefore,

vital that the international community con

tributes to ensuring a free of information

and improvement of the

- lastly, the outcome crisis

be largely determined the democratic

transformation of Serbia/Yugoslavia and the

international support to this goal is fundamen

tal, especially now when a and com

pletely negative trend

the of the above

of the principle governing

determination, this could

mon denominator of an

and



9/56

o speak about the right self-determina

tion should be

an

easy task, primarily

because it represents one of the most impor

tant principles of modern, international law

which has strongly affected the character of

our epoch. unfortunately this

is

not

always the case, and particularly in milieus in

which individuals and the ruling cliques are

terrified of the self-determination principle.

However it is easy to speak about the prin

ci ple of self-determination, as it was formulat

ed under the influence of doctrine of natural

rights of man, mentioned for the first time in

the Madrid Treaty,

as

early

as in

1526, which

specified that to effect the transfer of territory

contrary to the wishes of population

is con

trary to law and that such transfers could be

carried out only with an explicit consent of

that population. This in fact means that the

self-determination principle is a very old tenet,

originating from the period when feudalism

was morphing into capitalism, from the period

when the new bourgeoisie strove to assert

national sovereignty and create independent

national states. Such aspirations essentially

embraced the right of people to determine

political order and status of their state.

From its inception the self-determination

principle was a dream and hope of millions of

oppressed and disenfranchised people world

wide. Finally in the post- W W 11 period it

became a reality. The US Declaration of

lndependence expressly underscored that the

authority of each state stemmed from the con

sent of the subjects of that state, proclaimed

that peoples had the right to decide on the

ugust 1999

form of that authority and on status of their

state, including the right to change any form

of government when it failed to provide for

their livelihood, freedom and happiness, and

specified that they could sever political rela

tions which tied them to other peoples and

take a special and equitable place among the

forces of this world under the natural laws and

the God of this nature 8

The 1789 and 1793 French Declaration on

the Rights of the Man proclaimed the will of

the people

as

the basis of any government,

and

ruled that sovereignty belonged to peo

ple, which meant that every nation was the

master of its country and as such entitled to

freely decide its fate.

The Russian Declaration on the Rights of

Peoples went furthest by proclaiming that

peoples have the right to self-determination

including secession and creation of indepen

dent states.

Manzini, and then Lenin and Wilson,

through the principle of ethnicity , have great-

ly contributed to the affirmation of the self

determination principle. Their ideas were

adopted by the masses which

in

turn were

guided by the belief that each nation,

as

a

community of people different from the other


10/56

people on the

religion, aspirations,

toms etc., had the

ate a state.

masses, were

cation of Germany and

and liberation of

some Balkan nations

(Serbia, Montenegro and

Rumania).

s

incorporate the

into the Pact

League of Nations was

successful. Also

aspirations of

nations to achieve

national liberation, inde

pendence and unifica

through, primari

ly because right to

self-determination was

backed cases of

those peoples

under the rule

Hungarian monarchy, Germany,

Russia, and not cases of the oppressed

peoples of Asia, Africa and even

those opposed interests,

to solve the national issue

protection of national

recognition once they were

League of Nations. This represented a con

siderable achievement.

the period between

the self-determination right

political principle, was

into the basic principles international

extension the plebiscite was not

backed.

1

aforementioned reasons

leaders

of the anti-fascist coalition have

repeatedly stressed the that

people self-

represented one of fore-

tion principle

international

Rights of Peoples

the prerequisite

tation of all other



11/56

realization and exercise

man be

nation is not free.

enough

purpose character was clearly

n i C > , m l ' , n T - . T l r \ I \ of self-determination

cipie resulted

in

liberation of a large number

states nations

as

clearly

demonstrated a fourfold increase of

number of the

members: from 5 at the

ugust 999

the organization the present-

Hence no that a recent,

international contains

1

Todayes opene society

closede society

earlier times owes this essen

to

self-determina

of people.

self-determination became

an

originate

other principles

guidance for the international

ogens

Hence self-deter

belongs

Due to the aforementioned

anyone dares to open-

or the right self-

if such a challenge

is

it is motivated rather

legal reasons. Fortunately this issue lost

it had had during first

period,

as in

a arge number peoples

and nations obtained independence.

Same authors, example Dobrica Cosi6,

consider the right to self-determination the

first principle for any democratic solution.''

5

we are faced today are hidden

attempts at denying the right to self-determi

nation, whereby different arguments are used.

For example during the stage of the SFRY dis-


12/56

integration, the position that the peoples

in

the SFRY have consumed

the right to self

determination, and, consequently could not

use it again, was much-asserted. This position

dominated the constitutional-legal science of

Yugoslavia (Serbia and Montenegro)

6

the

case of Kosovo it was contended that

Albanians were a minority and not a nation.

Consequently it was also maintained that

being the minority with the domicile state,

and

in

compliance with regulations

in

force

in

Europe that... a people cannot have more

than one state \ Kosovar Albanians could not

be the subject of the right to self-determina

tion, nor even entitled to the federal status.

1

There were also efforts to limit the significance

of the right to self-determination to the issue of

self-administration, by devoiding them of the

possibility to create their own state, to be

incorporated into the other state, to change

their status within the framework of the exist

ing state, etc.

Let me briefly tauch on some of these argu

ments. Firstly the thesis that the right to self

determination can be used only once does

not hold water, and that

is

what most docu

ments and authors of international and consti

tutional law agree upon. This

is

backed by the

fact that constitutions of some states express

ly envisage that right to self-determination

might include secession, and that many inter

national documents include that right,

although they originate from the countries

whose peoples have by and large consumed

e hat right.

he

second thesis alleging that Albanians

in

Yugoslavia are a minority

is

not an estab

lished and confirmed construction. In South

Tyrol or

in

Belgium there are only several

thousands or tens of thousands of Germans,

whereas

in

Yugoslavia there are almost two

million Albanians. There are more Albanians

in Yugoslavia then they used to be

Macedonians or Montenegrins

in

the former

Yugoslavia. Their number in fact equals the

nmber of Slovenians in the former

SFRY.

To

substantiate the above thesis its authors and

politicians mention the existence of a

domicile

state of Kosovar Albanians -Albania-, over-

12

looking the fact that Moldavians

in

the Soviet

Union, although a smaller minority than

Kosovars

in

Yugoslavia, were not treated

as

a

minority, but had their own federal republic.

That also applies to Serbs and Croats

in

Bosnia who also have their own national state.

The thesis that a people cannot have more

than one state

disregards not only the recent

past of Germany which had more small

states than there are days in a year

the situ

ation

in

the pre-unification ltaly, and even the

present-day examples of several peoples

(nations) having two or more states, for exam

ple, two Germanys, along with Austria and

Luxembourg, two Koreas, two Vietnams, two

Yemens, Rumania and Moldova, Greece and

Cyprus, Bangladesh and Western Bengal.

This in fact means that the existence of

Albania cannot be an obstacle to the exis

tence of the other republic,

in

which Albanians

would constitute a majority, either within the

framework of the existing state or as

an

inde

pendent state.

8

And finally efforts to reduce the right to self

determination to the so-called internal self

determination 11 that

is

the right of people to

choose their own social and political order

9

are akin to certain positions

in

the West, which

consider self-determination a synonym for

self-administration, or freedom of democratic

choice of their own governmene1or the right

to authentic self-government.

Essentially all

these are attempts to highlight the less impor

tant aspect (internal facet of the right to self

determination) and to overlook the other

aspect of the right to self-determination, on

the basis of which every people or nation liv

ing within the framework of the other state has

the right to secession and creation of inde

pendent state. The latter constitutes one of

the essential elements of this notion, but also

the most serious problem. the implementa

tion of which often results in armed conflicts

(Catanga, Biafra, Northern lreland, Eritrea,

etc.)

In the related literature this right is often

mentioned together with the right of peoples

and nations to secession with the aim of

achieving unification with another state (refer

endum in Moldova included the possibility of



13/56

unification with Rumania),

as

weil as with the

right of peoples and nations to unite with their

former state, but with a changed status, for

example, as members

of

federation,

autonomous units, but not as units within the

framework of a unitary state. This is

in

fact

in

keeping with Wilson's understanding of the

principle of self-determination on the basis of

which

peoples have the right to choose the

kind of government or rule under which they

wish to live; have right to restructure the

states of Central Europe in harmony with

national wishes (this was the guiding principle

during the division of the Ottoman and Austro

Hungarian Empires and re-drawing of the

European map). This principle, which is

in

compliance the ideas on self-determina

tion of the highest authorities on this issue,

should be used as main criterion when

effecting territorial changes

12

Finally 1 would like to say that the problem

are in fact conditions favoring claims and

demands to use the right to self-determina

tion, and not the very right to self-determina

tion. Why secession demands are not voiced

in

Switzerland and

in

the United States, where

they could easily emerge given the racial,

national, religious and linguistic diversity of

populations? How come those countries do

not have to grapple with the issue of natio

nality?

Opponents of the right to self-determina

tion instead of criticizing the relations which

impose the need to resort to that right, criti

cize those

who

in inequitable relations

demand to exercise this legitimate right.

Accordingly the problem

is

not the recogni

tion of the right to self-determination. Nobody

contends that possibilities for divorce should

be abolished. marriages are dissolved not

because there

is

a legal possibility for their

dissolution, but because further cohabitation

is

impossible. would like to quote one of the

fathers of the American independence, John

Adams, who wrote: lt is true that initially inde

pendence has not been our goal. But injus

tices committed by England compelled us to

take up arms. Bereft of any hope that we

might enjoy the kinges mercy, under the rule

ugust 1999

of England, we were left with no other possi

bility but to become outlaws.

1)

Smilja Avramov,

Meaunarodno pravo

VI

edition), Beograd, 1980, p. 58; Avramov

Kreca,

MJP X

edition), 1989, p. 61; Branimir

M.

Jankovi6,

MJP (II

edition), Beograd, 1970,

page 196; Milan Bartos, MJP

1

book,

Beograd, 1954, pp. 198, 289, 349 and 449.

2) Smilja Avramov, quot. from

p.

230; S.

Avramov-M. Kreca, quot., p. 247; Jankovi6,

quot., p. 197.

3) International Law

UNESCO, Paris, 1991,

p.

1052.

4) Mohammed Bedjaoui, General Editor,

International Law: Achievement

nd

Prospectus UNESCO, Paris, 1991, p. 1184.

5)

Borba

20-21 March, 19936 iodrag

Jovici6, Veliki ustavni sistemi Beograd, 1984,

p. 238.

7) Mihajlo Markovi6, Dnevni Telegraf , 9 May

1998.

8)

Radovan Pavi6, Resenje za Kosovo,

Rilindja , 5 August 1990.

9)

Antonio Cassese, Self-Determination of

Peoples

Cambridge University Press 1995,

p.

101.

10) lbid, p. 21.

11) Smilja Avramov, quot., p. 58; Smilja

Avramov-Milenko Kreca, quot., page 62; Milan

Bartos, quot., p. 213.

12) Antonio Cassese, quot., pp. 20-21.

13


14/56

1

cannot be said that the century of human

rights, decolonization and self-determination

is complet ing successfully its historic mission.

t seems that the universal international, legal

principle inaugurated at the beginning of this

century, cannot absorb all national-political

realities and problems at its end. Just two

years before the new millennium, the right to

self-determination, as the political-legal quali-

established after the WW2,

is

still

an

issue

of current interest. From the day Wilson has

inauguratated it internationally today, it

seems that the successful completion of the

two positive historical processes could be

attributed to the right to self-determination.

Firstly, it helped de-imperialize mostly) small

er European nations, and secondly, it boosted

the

process of

de-colonization

of

non

European nations which were governed by

the

m jor

European metropolises.

those processes were completed during the

so-called cold war, the opinions emerged

with the rounding off of the state-legal sover

eignty

of

peoples, from 1918

ru

the

Seventies, there was no more need for imple

mentation of this principle. However deveiop

ments in the last decade of this

became very similar

to

the ones from its first

decade: strong nationalistic, now post-com

mu nist movements in Europe reactivated

demands for an almost forgotten principle

peoplees self-determination. the two

aforementioned processes-de-imperilization

and decolonization we are

now

witnessing the

third process-the

postcommunist

sover-

eignization of peoples, either the shape of

sovereignization of Eastern bloc

1 1

1

states, after the abandonment of the doctrine

of limited sovereignty

1

1 or the state dissolu

tion of the former communist federations the

USSR, the

SFRY

Czeckoslovakia).

Thus

an

academic, legal and pragmatic

question emerged: which international

framework more than 20 cases of self-deter

miantion including secession in the Eastern

and Southeastern Europe should be placed, if

recently we considered the right to sel

determination a colonial principle

Cohen). The later was applicable only late

Eightees and early Ninetees. The normative

aspect of the right to self-determiantion

in

international law seemd to be too for

doctrinary interpretations. The Charter, its

Covenants related to rights, as as

the OSCE documents place provided

general international-legal framework of this

universal principle. Some resolutions of the

General Assembly so-called de-coloniz-

ing resolutions:

Res.

7 48 ;

Res. 1541

; Res. 3034 i 972; Doc. 593,

Annex

B;

etc) were related to the colo-

nial cases, and focused on so-called

countries . But the practice

last decade this century proves that

self-determiantion, is not,

as

Mazrui, so-calied

determination

but peoples

regions, social and orders,

orders and economic systems aspire

and not peoples colored conti-

nents11

undeveloped societies and undemoc-

ratic regimes. creation

egories of

tions

to

the



15/56

1.

the post-imperialist self-determination

(creation of new states after disintegration of

the great empires);

2.

the post-colonialist self-determination

(creation of

new

states from the former

colonies);

3. the post-communist self-determination

(creation of new states from the form er com

munist federations).

Here however we shall

est

Kosovo as a burning and still unresolved

European issue this century remained

untouched the three historical processes

of self-determination, although comparatively

speaking it could have been resolved

the framework of any of the three abovemen

tioned processes. But either academic or

political discussions of this problem, the

specters of

11

inviolability of borders" and

11

the

principle of preservation of territorial integrity

and sovereignty of states" have repeatedly

arisen. But have the European borders really

remained unchanged?

After the Versailles Treaty the inviolabil ity of

the so-called Versailles borders was sanc

tioned; after the Paris Treaty the same hap

pened with the so-called

11

inviolability of Yalta

borders

11

;

and during the cold war the

11

inviola-

of the so-called Helsinki borders

11

was

sacrosanct. a cursory glance at the

state of European borders during this century

shall prove to us that the case of

Kosovo the change of borders

in

Europe) is

not allowed. On the other hand European

11

borders

of Helsinki

11

have already been

changed German unification, those

of

Yalta state dissolution of the fomer USSR,

and the Versailles borders by disintegration of

the

former

SFRY and the former

ugust 1999

Czechoslovakia. But

in

the case of

Kosovo international community stubbornly

insisted on the principle of inviolability of the

first European border regime of this century:

the one established at the London

Conference in 1913. But if there

is

so much

insistence that borders cannot be changed -

the Kosovo case- it means that the people

who aspire to independence must remain by

force and against their within the frame-

those

11

inviolable borders" we

this is contrary

Helsinki process and

international law

the

11

military occupation does not

administration over a

t ,.....-, t ,...

also states that forces

could perhaps establish control over a territo-

but could not create international legitima

cy for such a state of affairs.

11

Kosovo, as a classical problem of peoplees

self-determination, within the framework of the

so-called colonial modei, fulfills all conditions

and criteria of international and legal doctrine

which has developed

in

the past ten years

with the view

to

clarifying and specifying

(quite ambiguous and generalized norms of

international law)

in

which cases a people can

be recognized the right to self-determination

up

to

secession (Halper, Scheffer, Buchanan,

Knopp, Howse, Halei, Hunnum, etc.) lf we dis

regarded the aforementioned international

documents related to self-determination

(although they absorb the case of Kosovo as

a classic case of self-determination) and took

into account only its scientifically-based crite

ria and applied them on the case of Kosovo,

conclude that Kosovo Albanians ful

conditions-cumulatively so-to be recog

nized the right to self-determination up to

secession. These three basic criteria are:

1. How a people a part of that peopie)

came under the foreign state jurisdiction-by its

free or by force?

2. Was the treatment of that people

a

part

of that people)

in

that state humane or repres-


16/56

sive?

3.

Have the people (a part of the people)

expressed massive and firm will

to

stay within

that state or

to

secede from it?

Answers

to

the three above questions-crite

ria are

generally known and clear:

1. Kosovo was forcibly annexed

to

Serbia in

1912,

after the Balkans wars, by military occu

pation and not by free will of its majority pop

ulation (here we are dealing with a particular

dimension: military occupation and economic

exploitation of natural resources of colony by

foreign metropolis).

2. The state of Serbia in the last 86 years

treated Albanian people

in

a repressive and

genocidal way (a particular dimension of

repression with elements of apartheid and cul

tural colonialism; also favoring the people of

metropolis over the peopie of colony cultur

al, language, religious, ethnic and cultural

fields).

3.

the

1991

referendum Kosovars opted

massively, publicly, clearly and firmly for inde

pendence

of

Kosovo (a particular dimension

of

an express will of people of the colony to

liberate themselves from the metropolis).

The abovementioned clearly indicated that

from the aspect of international law Kosovo

fulfills cumulatively all three prerequisites for

the recognition of the right

to

self-determina

tion. Namely Albanian people in Kosovo,

against their will were forcibly annexed to

Serbia (so-called illegal taking model ); the

Albanian people were subjected to systemat

ic state repression

(so-cailed Government

misconduct model ); and finally, an over

whelming majority

of

Kosovars people pub

licly expressed its

for

independence at the

referendum (so-called Communitarian aspi

ration for national self-determination

.

Sources

1.

Robert

Howse

&

Karen Knop:

Federalism, Seeession and the Limits of

Ethnic

Accommodation:

Canadian

Perspective

1

1

New Europe Law Review

1

1

Vol.

1,

No.

2,

Spring

1993.

2 lvo Banac: Ethno-Violence in Former

Yugoslavia , New Europe Law Review

,

Special Proceedings, Fall,

1993.

3. Minasse Haile: Legality of Seeessions:

The Case of Eritrea

, Emory International Law

Review

, Vol. 8, No. 2, Fall 1994.

4.

Mazrui: Towards a Pax Africana ,

1967

5.

Pauline

H

Baker John A Ausink:

State Collapse and Ethnic Violence: Toward

a Predictive Model

, Parameters-US Army

War

College Quarterly

,

Vol.

XXVI,

No.

1,

Spring 1996.

6

Patrick Thornberry:

1

The

International

Law and the Rights of Minorities, Oxford,

1991.

7.

Allen Buchanan: Federalism

and

Seeession: The Morality of Political Divorce

from Sumter

to

the Lithuania and Quebec

,

1991

8. Lea Brilmayer: Seeession and Seif

Determination: A Territorial lnterpretation

, 16

Yale International Law,

177, 1991.

9.

State Sovereignty-Chance

and

Perspective

in

International Relations,

Edited

by Sohail Hashmi, Penn State university,

1997.

10. Hurst Hanum: The specter of seces

sion: Responding

to

Claims for Ethnic Self

Determination11, Foreign Affairs , March-April,

1998.

11. John

Hillen: Picking Up U.N.

Peacekeepinges Pieces

, Foreign Affairs

,

July-August,

1998

12.

Gazzetta Ufficiale della Padania , No.

001, 15

Settembre

1996.

13.

Le regioni della Padania

,

Foligno,

1996.

1

The Charter of OUN.

15.

Res.

748

16. UNGA Res.

1541

17.

UNGA Res.

3043

1960.

1972.

18. UNSC Res. 855 (1993)

19.

UNSC Res.

1160 (1998),

SDRESD

1160

(1998), 31

March

1998.

20. UNSC Res. 1199 (1998), SDRESD 1199

(1998),

23

September

1998.

21.

UNSC Res.

1203 (1998),

SDRESSD

1203

(1998), 24

October

1998.

Helsinki Charter - Special dition


17/56

III

1975 contains

signatory states

(1) observe sovereign states,

2) refrain from using or threatening force, 3)

inviolabil ity borders, territorial integrity

of states, 5) peaceful resolution of disputes,

6)

non-interference in internal affairs,

respect human rights and basic freedoms, 8)

equality and right of people to self-determina-

tion, cooperation between states and

1

conscientious compl iance undertaken

commitment under international law.

2. The new stage in the resolution of issues

related to national minorities was initiated

the creation of the post of the OSCE

Commissioner for National Minorities envis

aged

in

the second Chapter of Helsinki

Decisions

adopted at the 1992 Summit. 2 The

primary task

of

the High Commissioner is not

the protection of individual or collective rights

of members

of

national minorities, but preven

tive dipiomacy. His task is to respond

in

the

earliest possible stage to tensions arising

from the issues of national minorities which

could evolve into a conflict in the OSCE area.

The Final Act does not envisage any hierar

chical relations between the ten principles. lt

also underscores that each of these principles

will be interpreted

by

taking into account all

the others.

The principle of joint interpretation was

expressly stressed within the eighth principle

ugust

1999

the right of people self-

it is said that

principle the member states

act compliance with corresponding norms

of international law, including those related to

the territorial integrity of states. By defining the

contents of this principle the Final Act states

that all peoples have the right to determine

in

liberty when and how they want to define

their internal and external political status, with

out external interference and to realize as they

wish their political, economic, social and cul

tural development '

The principle of the right of people to sov

ereignty was included in the Final Act at insis

tence of Western countries which

in

that way

wanted to lend their support

to

democratic

transformation of the countries of real social

ism to free themselves from the Soviet hege

mony.1

The principle that the right of people to self

determination must be observed nowadays is

very often and unjustly reduced only to the

right

to

secession. Taking into account the

demand of the Final Act that each principle

must be interpreted jointly with the others,

notably with the principle of territorial sover

eignty, conscientious compliance with com

mitments undertaken under international law,

and sovereign equality of human rights and

basic freedoms and the respect thereof, it

could be said that

in

practice the exercise of

the right to self-determination could cover a


18/56

broad range of different status solutions which

do not challenge the respect for other princi

ples of the Final Act.

Within the framework of the seventh princi

ple which speaks of the respect for human

rights and basic freedoms there is also a for

mulation according to which the states in

which territory there are national minorities

committed themselves to respect the rights of

persons who belang to those minorities, their

equality before the law and to provide them

with a comprehensive possibility to genuinely

enjoy human rights and basic freedoms. For

15 years CSCE/OSCE has adhered to this for

mulation of the protection of national minori

ties 2

A major step forward was made at the

Second meeting of the Conference on Human

Dimension held

in

Copenhagen

in

1990.

The document from that meeting empha

sizes that issues related to national minorities

can be resolved in a satisfactory way only

within a democratic political framework based

on the rule of the law. The same document

particularly emphasizes the following rights of

members of national minorities: free use of

their mother tongue, establishment,

in

keep

ing with their national laws, of their cultural,

educational and religious institutions, estab

lishment of unhindered mutual contacts, as

well as contacts beyond their country, with cit

izens of other states, exchange of information

in their mother tongue and participation in the

work of international non-governmental orga

nizations through their associations.

The Copenhagen Document did not envis

age the right to autonomy. This right was

mentioned only at the 1991 Geneva Meeting

of the experts on national minorities, and only

in the shape of a mild-worded and non-bind

ing recommendation. Namely the report on

this meeting stated that member states assert

with interest that some of them have achieved

positive results

in

a satisfactory way, through

( ) autonomy on the territorial basis, includ

ing the existence of consultative, legislative

and executive bodies, elected at free and peri

odical elections.

During the first five years of his mandate

the High Commissioner was engaged in the

18

easing of minority tensions in fifteen OSCE

states.

As early as

in 1993

he was active

eight states: Albania, Macedonia, Hungary,

Rumania, Slovakia and the three Baltic states

Lithuania, Latvia and Estonia.

1994

he initi

ated his missions in Moldavia, Ukraine,

Kazakhstan, Georgia and Kirghiztan.

In

late

1995 he started his mission Croatia.

The problems he had so far dealt

could fall into several categories. The largest

number of issues was related to the right of

national minorities to use their mother tongue

and receive education their mother tongue

(the Greek minority in Albania, the Albanian

minority in Macedonia, the Slovak minority in

Hungary, the Hungarian minority

in

Slovakia

and Rumania). view of the importance of

this problem, the High Commissioner initiated

the adoption of special recommendations

related to education rights of national minori-

ties.4

In addition to the aforementioned there

were also issues related to organization of

local administration bodies in areas in which

members of national minorities were repre

sented

in

a large number, then the scope of

the corresponding media contents

in

minority

languages (Albanians in Macedonia,

Hungarians in Rumania), and also other

aspects of minorities participation in public

life. In the former republics of the Soviet

Union, which obtained independence after

1991, the High Commissioner dealt with the

issue of citizenship of Russians living

Estonia, Latvia, Lithuania, Kazakhstan and

Kirghiztan.

Finally some states demanded the highest

territorial utonomy or even secession

(Gagauzians and Russians in Moldavia,

Crimea in Ukraine, Southern Ossetia

Georgia).

In each of these situations the High

Commissioner familiarized

in

depth with the

central problem burdening relationship

between national minorities and the majority

people. On the basis of such knowledge he

came up with concrete recommendations, the

observance of which, in his opinion, could

ease tensions and establish ethnic harmony



19/56

the country. The guidelines of these recom

mendations are contained in the OSCE docu

ments, that is, in commitments undertaken

the OSCE member states to protect national

minorities.

Activities of the Commissioner could

be divided in : 1) recommendations to gov

ernments pursue adequate national minori

ties policies,

2)

assistance

in

drawing up and

elaboration of legal texts bearing on

minorities organization

tables

consis

r'm' ' '11-C\rl his recommendations,

others embarked upon dialogue to pre

sent the situation from their angle. The exist

ing OSCE regulations do not foresee any

sanctions for non-observance of the High

Commissioner's recommendations. However

in

case non-observance the High

Commissioner can delegate the case for

examination to the Permanent Council, which

in

turn can delegate this problem to

an

even

higher instance.

his activities the High Commissioner

in

the first five years of his mandate respect

ed territorial wholeness of each country

in

which he operated. secessionist

trends were very strong

in

some of them, he

did not back or encourage them. He relied on

his mandate and the basic OSCE principles.

He

insisted on the solutions, within the frame

work of each state, which could provide for a

harmonic development of a state as a whole.

his approach the resolution of those

problems, the High Commissioner insisted

that the protection of national members was

not in the interest of their members, but

also

in

the interest of a state

in

which they

lived, for such a protection ensured stability

and peaceful development. lf a state wants to

have loyal citizens among members of nation

al

minorities, it must show to them a major

August 999

dose of loyalty, meeting their sensible

demands.

The High Commissioner deems that coun

tries origin of each minority group play a

major

role the protection of national minori

ties.5

their proper engagement

in

the

process, they will give a major political weight

to the issue of status of a minority group

in

the

country in which that minority lives. A con

structive and sensible approach of those

countries to the problem of their

other ease

possible tensions, and help harmonize

relationship between the the

authorites the

in

which it lives.

Activities of different long-term

in

those states character-

secessionist movements which

self-

determination, play a role analysis

the observance of Helsinki principles. This

applies to Georgia (the region of Southern

Osetia), Moldavia (Transdnestrovia) and

Ukraine (the region of Crimea)

in

which, to a

arger or lesser extent, the ethnic Russian

population wants independence. Similar

is

the example of Chechens, who want to

secede from the Russian Federation and

obtain independence. all those cases

the efforts of the OSCE permanent missions

and political bodies focused on the establish

ment of dialogue between the confronted

sides, respect for human and minority rights,

and also on the primacy of principle of territo

rial sovereignty of the state concerned over

demands for self-determination.

The example of Nagorno-Karabah, the area

peopled by Armenians, and situated inside

Azerbaidzhan, is very illustrative. Karabah

obtained the factual independence, but was

not internationally recognized. In 1992 the

OSCE initiated so-called Minski process

tasked with resolving this dispute through

mediation. The diplomatic formula for the res

olution of the dispute for a lang time implied

full observance of the territorial integrity prin

ciple and all the other, equally important, prin

ciples. On the basis of this formulation

Armenia believed that Karabah could obtain . ..


20/56

independence

by

resorting to the principle

of self-determination.

But, at the OSCE Lisbon Summit 1996, a

somewhat different formulation

in

the shape

of the statement

of

the OSCE President, was

adopted. lt was based on three principles: (1)

the observance of the territorial integrity of

Armenia and Azerbaidzhan, (2) resolution of

the legal status of Karabah through an agree

ment based on self-determination, implying

the highest degree of self-administration

within Azerbaidzhan

and

(3)

guaranteed

security of the Karabah population. Such a

framework indicated the primacy of principle

of territorial integrity of states over the right of

people to self-determination, understood as

the right to secession.

1 Ljubivoje A6imovi6, CSCE and the

Yugoslav crisis in the compendium Meaunar-

odno

pravo i jugoslovenska kriza ilan

Sahovi6, (ed.) IMPP, Beograd, 1995, pages

120-164.

2 Description of the mandate of the OSCE

High Commissioner for national minorities

was

published

in the

compendium

Nacionalne manjine: u

me un rodnom

i

jugoslovenskom

pravnom poretku

B

Milinkovi6, S. Milinkovi6, ed. Medunarodna

politika

i drugi izdavaci, Beograd, 1997,

page. 106-112.

3.

The Role

of

the High Commissioner on

National inorities in OSCE Conflict

Prevention

The Foundation on nter-ethnic

Relations, Hague, 1997.

4.

1The Hague Recommendations

Regarding the Education Rights of National

Minorities

International Journal on Minority

nd

Group Rights

Val. 4, No. 2., 1996/97, pp.

199-213.

5. Report of Max Van Der Stoel OSCE High

Commissioner on National Minorities , The

OSCE Meeting on Implementation on

Regulations Concerning Human Dimension

12-18 November, 1997, Warsaw.

2

1

think that the notion of autonomy should not

be elaborated from the philosophical stand

point for it would then become similar to su?h

mundane dilemmas like, shall

1

go to the c1n-

ema, what shall 1wear today, what name shall

1

give to child.

In

other words, shall

I

be the

master of

my

own fate.

In

view of the afore

mentioned 1 suggest that the notion of self

determination be treated from the political and

international law standpoint. That is the gist of

our conference and discussion.

Under the 1974 Constitution the Assembly

of Kosovo had the same rights like the assem

blies of other republics, as mentioned by one

of the participants.

1

can say that Kosovo exer

cised those rights until 1981. that year stu

dents of the University of Pristina staged mas

sive protests demanding not only social and

economic rights, but, due to lack of prospects

in

Kosvo, also voiced claims that the province

be accorded the status

of

republic. In fact,

judging all parameters and indicators,

Kosovo deserved that status. But the commu

nist regime of the former Yugoslavia and

Serbia used those demonstrations as a pre

text

to

massively incriminate Kosovar

Albanians as a people and brutally satanize its

intelligentsia. As 1was professionally engaged

in

some of the trials, maintain responsibly

that from 1990 about 3,000 Albanians were

sentenced to an average 7 years

in

prison.

Nusi forgot to say that 3, 450 young Kosovars

were sentenced to 25,000 years in jail, or 250

centuries. The repression and persecution of

Kosovars continued. lt culminated

in

March

1989, when the Serbian regime, hiding behind

the phrases about an alleged modernization

of the federation and Serbia, abolished the

constitutionally guaranteed autonomy of



21/56

Kosovo in all spheres political, cultural, eco

nomic, educational). The people of Kosovo

strongly opposed those hegemonistic aspira

tions and changes and tried to attract the

attention of domestic and international public

opinion

t

its plight by staging peaceful

demonstrations in 1988 and 1989. the

ensuing, brutal police crackdown on demon

strators 79 students were killed, several hun

dred wounded and several hundred arrested.

When the Serbian regime headed by Mr

ilosevi6 failed

t

convince Kosovar

Albanains to accept measures which did not

guarantee them any autonomy the alleged

autonomy was reduced to 8-year education

and made impossible continuation of educa

tion at secondary schools and university) after

1989 it dissolved the Kosovo Assembly and

other provincial bodies. lt is a well-known fact

that 300,000 pupils received primary educa

tion imparted by 20,000 teachers. Not only the

teachers were sacked, but 20,000 students

and 900 professors were banished from dif

ferent organizations and faculties. Added to

that 110,000 Kosovars lost their jobs

in

other

spheres of life. By those repressivee mea

sures Kosovo, with 2 million strong-popula

tion, was forcibly transformed into a colony,

governed by discrimination and segregation

laws.

This is a typical system of apartheid. What

has been happening

in

Kosovo cannot be

only called eviolations of human rightsg, for it

is a broader notion. Similar violations exist in

other states, while the Albanian people have

been stripped of elementary rights, and heavy

taxes and duties have been imposed on them.

In parallel the predominantly Serbian police

and judicial bodies continued their repres

sion. Until 1997, 25-30 Albanians were killed

every year by the police, under different pre

texts, while several hundred were intimidated.

In the past decade Albanians could not freely

leave their hause to go to work, for their lives

were endangered. lt must be pointed out that

no policeman was punished for the misuse of

his official duty in Kosovo, Hence in the past

ten years Kosovars rightly considered the

Serbian police as a punitive expedition. The

August

1999

total economic, political and security situation

in Kosovo has closed off any prospect of bet

ter life

in

Kosovo and caused massive emi

gration of Kosovars to many European coun

tries, notably Germany and Switzerland. The

Albanian people

in

Kosovo opposed that seg

regation and apartheid of the Serbian regime

by peaceful, Ghandi-like methods.

In

response to international pressure and criti

cism, the political and official propaganda of

the Serbian regime continued doctor the

facts of life Kosovo, by falsely insisting that

Kosovars were guaranteed all individual and

national rights, as weil as freedoms, com

pliance with the highest international stan

dards. Owing to international pressure the

agreement on stabilization of education in

Albanian language had been reached, signed

by Mr Milosevi6 himself, but

in

the past two

years, only one University building had been

emptied, while the remaining 19 universities

remain occupied. Five or six secondary

school buildings have been made available to

the Albanian pupils, but the rest are

still off

limits for them.

lt the very outset of negotiations, the reso

lution of education situation could have had a

positive impact on the overall Kosovo situa

tion. lt could have boosted the hopes of the

young generation, for they were forcibly

thrown out of their school buildings. But as

the education problem was not solved, the

belief was strengthened that cohabitation in a

kind of autonomy, guaranteed by internation

al community

in

the shape of Mr Hilles pro

posal for agreement, is not the genuine solu

tion for Kosovo

in

the rump Yugoslavia. lt is

now widely thought that such an autonomy

would be a generator of even deeper crises

both in Kosovo and Serbia, but also in other

regions.

Hence this is the last moment to recognize

to Kosovars the right to self-determination,

as

an interim solution.

As

regards this issue, the

Albanian side insisted through its concept of

solution, that it could accept

an

interim solu

tion for three to five years, after which period,

the right to self-determination should be exer

cised

in

a different way.

21


22/56

II versions of the draft document partially

made public were characterized by many

contradictions oscillations changes

o

emphasis in the treatment

o

some key

aspects of a future solution. lf a solution is to

be of a permanent character the aforemen

tioned did not augur weil for it But it is quite

possible that such frequently major devia

tions resulted from respect for suggestions

and objections of firstly one side and then

secondly of the other side in the negotiations.

Obviously their distanced and opposed posi

tions require a compromise solution which

could ultimately be acceptable to all the

involved parties.

lt is often stressed that a major dilemma

was whether a solution should be sought

within the basic framework of Serbia or the

Federal Republic of Yugoslavia. Both side

raised objections but some versions went too

far to meet the expressed or supposed inter

ests of the other side. The

timetable and com

petencies concerning the

tentatively

announced census in Kosovo and elections

laying the groundwork for local and provincial

self-rule are still imprecise. Also the. term

province

is

in some versions replaced by the

term territory and terms autonomy and self

rule are used alternatively.

The Kosovar Albanian side publicly voiced

its criticism and objections when versions of

the draft document were ran

by Koha ditore

and Washingon Post.

However the Beigrade

authorities denied having seen different ver

sions of the suggested solution and stub

bornly reiterated their adherence to eleven

points formulated by the Serbian government

on the basis

o

Milosevi6-Holbrooke

Agreement. This adherence

is

motivated by

the decision to place the search of any future

solution within the ramework of Serbia and

the Federal Republic of Yugoslavia.

Representatives of international community

involved in the process seem to tolerate

objections of the two domestic sides in the

dispute. They patiently reiterate that some

drafts do not represent the final solution but

rather a part of the negotiating process in

which both sides are free to espouse their

opinions. Serious states and politicians first

negotiate and discuss suggestions and then

eventually reach a compromise. International

representatives say this ought to happen in

this case too.

Talks will have to take place but 1 doubt

that they will produce any tangible results

without an active and direct engagement of

competent international factors. But their

drafts could be used as a basis for finding a

compromise solution while annexes thereof

could help solve many collateral problems.

In context of the future search for a com

promise solution 1 would like to put forward

my concept which could hopefully satisfy

both sides but without making them very

happy.

As

concerns the expressed position of

the key factors of international community that

a solution had to be found within the borders

of the Federal Republic of Yugoslavia but

without elements of the current status quo 1

suggested a year and a half ago at our joint

meeting in Ulcinj that a solution had to be

found within the Yugoslav Federation and had

to include an equitable - federal unit status of

Kosovo. Now 1 would like to add that in view

of all that has happened in the meantime

from the Ulcinj meeting to present-day devei

opments 1

am

even more convinced that my

approach was right just and both politically

and pragmatically grounded. A decade-long

Serbian police judiciary and constitutional

repression

in

Kosovo to which Kosovar

Albanians responded by passive resistance

and by constituting

parallel public services



23/56

put on the back burner the central issue of

status, and brought to a standstill any move

towards a political solution. Continued repres

sion inevitably led to radicalization of a part of

younger Albanians, disillusioned with failure

of the Ghandi-like resistance, and conse

quently bent on resisting the brutal authori

ties. The Drenica massacre mobilized support

for the Kosovo Liberation Army and made

more peopie join its ranks. From small-units

and groups the KLA has grown into the liber

ation guerrilla force. Despite its military defeat

suffered at the hands of major police, army

and paramilitary forces, it has evolved into a

political factor to be reckoned with.

the same time mutual confidence,

as

limited as it was in Kosovo, has been now

totally eliminated. Nobody is seriously con

cerned with the re-establishment cohabita

tion conditions. The Serbian political opinion

has reached the broadest consensus on

Kosovo, based on the logic of repression and

force.

In

recent times the ideas of division of

Kosovo accompanied by a whole package of

ancillary measures, for example, humane

resettlement oust an euphemism for the most

brutal ethnic-cleansing) are being put for

ward. This conspiratorial objective should be

immediately discarded, because the only civi

lized solution which will respect mutinationali

ty and the highest international standards will

have to embrace Kosovo in its entirety.

In the course of forthcoming negotiations

the federal approach merits attention,

although it

is

likely to be challenged

in

a seri

ous and coordinated way. An alleged

Montenegrin opposition to a solution with the

federai dimension or link, has been hyped

recently. But one cannot help but remember

that most responsible representatives of the

reformist government of Montenegro stated

they would gladly accept any solution agreed

on by Beigrade and Pristina. lf a solution

includes the federal status, the existing

Federal Constitution will have to be inevitably

amended.

In

that case Montenegro will have a

natural right to formulate its relevant position.

lt seems to me that if Montenegro remains

ugust

999

true to its economic and political reforms,

democratization and proven ability to nurture

multinational understanding and tolerance,

then it would be logical to expect its accep

tance of and support for the federal status of

Kosovo, which of course can be reached

through negotiations if they are well-paced

and conducted in a good-will atmosphere.

But if there is

too much procrastination and

manipulative suppression of key issues, the

community, bent on reaching a

solution which will guarantee the final cessa

ail armed conflicts and prevention of

further humanitarian catastrophe, be ulti

mately compelled to impose a solution ensur

ing the attainment of those objectives at

an

international Dayton-like Conference. At such

a conference attempts will be also made to

establish a mechanism guaranteeing a full

implementation

of

all dimensions

of

the

adopted package on a lasting basis, which

is

in the interest of all countries in this region,

threatened by further prolongation of the

Kosovo crisis, and even more by a possible

spill-over of the conflict into the neighboring

countries.

Process of disintegration of the former

Yugoslavia

is

yet to be completed. The

fact that four new states are now p rt of the

international community (plus the

RY

as the

state-pariah) does not mean that that process

has been completed, not only because the

Kosovo issue has not been resolved, but

because those countries are yet to regulate

their relations. The best example

is

Bosnia

and Herzegovina which in a way represent the

axis of future relations between Serbs and

3


24/56

Croats, and of integrity and identity of the

Bosniak nation.

Definition of the status of Kosovo, that is

the process of its self-determination,

is

a part

of the FRY disintegration and that of the future

relations between the peopies of the former

Yugoslavia. That means that the process of

self-determination of Kosovo

is on the one

hand a part of the last stage of disintegration,

and on the other hand a part of the future

process of regional cooperation.

B.

The process of the FRY disintegration

was induced by the transition from commu

nism to democracy, creation of national states

and definition of the new national states con

trary to the European integration, the

European economic power and the Atlantic

program of security.

those elements as the moving forces of

self-determination also motivate the Kosovo

concept: Beigrade is still the capital of an

unreformed state; it has not devised a cohab

itation model but had made the repression

model. lt is clear why it opposes to be inte

grated into the main European processes.

This model of government has not been

imposed, but is in fact the result of consensus

of the strengest pillars of society in Serbia.

Also the creation of the Serbian national

state, one of the main moving forces behind

the destruction of the former Yugoslavia along

with the wish to create non-Serbian national

states, has not yet been completed. The

process of the Kosovo self-determination and

creation of the state advances in parallel with

the creation of the Serbian state in an ethnic

sense.

An important part of the process of self

determination

is

the ability to create democ

ratic self-administration: Serbian has failed in

that, thus creating conditions for the others to

search for their own ways of self-administra

tion-building. Kosovo is not

an

exception

from that rule.

C. The process of the SFRY disintegration

was and still is the issue of the European sta

bility, a kind of test for international institutions

in the post-cold war period. Kosovo is impor

tant precisely because the Albanian question,

which makes its core, is not limited to the for

mer Yugoslavia s borders.

One of the most important by-products of

the bloody disintegration of the

SFRY

is a high

degree of involvement of the international

community, the first of this kind after the end

of the WW2. Hence the issue of self-determi

nation of peoples and states of the former

Yugoslavia has evidently become a multilater

al question.

The Kosovo case

is

accordingly of great

interest for the international community.

D.

In

its current involvement the interna

tional community is also focused on the build

ing on democratic institutions of self-manage

ment in Kosovo. Efforts are made to broker

an

agreement between Kosovo and Beigrade,

and to make that agreement it the general,

sustainable image of stability in the former

Yugoslavia. Even if the process of resolution

finding turns out to be successful, the two key

issues will nonetheless remain open: the

future status of Kosovo and the future status

of the Kosovo surroundings, that

is

the FRY in

which three different political and economic

systems

will exist.

that happens the most important ele

ment is perhaps the fact that all nations and

states of the former Yugoslavia recognize the

inherent need to regulate their relations. lf that

is so the Kosovo case of self-determination

might represent the test of regional coopera

tion, that is of the trend of getting closer to the

European magnet.



25/56

in discussion of such sensitive issues one

should adhere to generai standards of both

state and international law. A specific problem

is of course the implementation of those prin

ciples. Therein lie misunderstanding and dis

agreements, but it cannot be ever said that

some standards are applicable one situa

tion and non-applicable the other. firm

conviction is that those two principles are

overlooked when dealing with Kosovo, Serbia

and the FRY They are disregarded both

in

the sphere of international politics (so-called

mediation), and in the sphere of expert dis

cussions and analysis.

When 1said 1would touch on some theses

1 primarily had

in

mind the issue exposed

Mr

Pribi6evi6, the one of Kosovo

as

a new

third, federal unit. But his expose was tanta-

mount to voicing a political position without

any serious explanation. He didn t mention

any argument Kosovo should be a feder

al unit. His speech represented the political

urging and not

an

analysis of an exceptional-

serious problem or of possible conse

quences of the solution he advocated. When

such radical propasals, which have

an

impact

on the existing state order, are put forward,

then we are faced not only with questions

which affect only the existing regime, but with

ugust

1999

a host of new ones. That is basically

the difference between the scientific

and political approach to the prob-

lem. But at this moment 1am not inter

ested

in

1999 the Dialogue Was Possible_Helsinki Charter

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Transcript of 1999 the Dialogue Was Possible_Helsinki Charter