On February 17, 2008, Kosovo declared independence. As of March 6, 2009, fifty-six states have recognized Kosovo's independence, while a number of states maintain that Kosovo's declaration of independence is illegal. There is no specific resolution calling for nonrecognition, yet whether an obligation of nonrecognition stems from UN Security Council Resolution 1244 is a highly disputed issue.
Resolution 1244 established an international territorial administration, affirmed Serbia's territorial integrity, and called for a political process leading to settlement of Kosovo's future status. Unlike in East Timor, the political process in Kosovo did not result in a prenegotiated path to independence, confirmed by a subsequent Security Council resolution.
This Article analyzes legal positions regarding Kosovo's declaration of independence and examines the significance of international involvement in the process of state creation. Despite the reference to the dissolution of Yugoslavia in the declaration of independence, Kosovo is an example of unilateral secession from Serbia. This Article concludes that international involvement implies constitutive elements of state creation and that Kosovo has some deficiencies in meeting the statehood criteria.
TABLE OF CONTENTS I. INTRODUCTION II. KOSOVO: HISTORICAL, POLITICAL, AND LEGAL FRAMEWORK A. Kosovo, Serbia, Yugoslavia, and International Aspects 1. Autonomous Status Within the SFRY and Background 2. Suspension of Autonomous Status and Aftermath 3. The Rambouillet Accords, the NATO Intervention, and Their Repercussions B. From Resolution 1244 to the Declaration of Independence 1. Resolution 1244 and the Effective Situation 2. The Political Process, the Ahtisaari Plan, and the Declaration of Independence III. KOSOVO AND SECESSION A. The Right of Self-Determination and Kosovo Albanians 1. The Right of Self-Determination and Territorial Integrity 2. Are Kosovo Albanians a People for the Purpose of the Right of Self-Determination? B. Secession: "Remedial" and Unilateral Aspects IV. KOSOVO AND STATEHOOD CRITERIA A. The Traditional Statehood Criteria and Kosovo B. The Additional Statehood Criteria and Kosovo 1. The Additional Statehood Criteria: General Doctrine 2. The Additional Statehood Criteria: Does Kosovo Meet Them? V. KOSOVO AND RECOGNITION A. Recognition Theories, Collective Nonrecognition, and Kosovo 1. Constitutive and Declaratory Theories 2. The Doctrine of Collective Nonrecognition and Kosovo B. Resolution 1244, Secession, and Recognition 1. General Observations 2. Serbia and Russia 3. The European Union and the United States 4. Commentary on State Practice 5. The Practice of Post-1991 State Creations and Kosovo VI. CONCLUSION
On February 17, 2008, the Kosovo Assembly adopted the Declaration of Independence. (1) The Declaration makes reference to, among other things, "years of strife and violence in Kosovo, that disturbed the conscience of all civilised people" (2) and expresses gratefulness that "in 1999 the world intervened, thereby removing Belgrade's governance over Kosovo and placing Kosovo under United Nations interim administration." (3) It declares Kosovo to be "a democratic, secular and multi-ethnic republic, guided by the principles of non-discrimination and equal protection under the law," (4) welcomes "the international community's continued support of ... democratic development through international presences established in Kosovo," (5) and states that "independence brings to an end the process of Yugoslavia's violent dissolution." (6)
The Declaration of Independence thus draws on developments in Kosovo's recent history: the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY), the human rights abuses and grave humanitarian situation in Kosovo under the Milosevic regime, the military intervention of the North Atlantic Treaty Organization (NATO), and the effective situation established by UN Security Council Resolution 1244, which left Serbia with no effective control over Kosovo. (7) Ultimately, it declares independence while adopting restrictions on Kosovo's sovereignty.
The Republic of Serbia insists that Kosovo remains its southern province. In an address to the Security Council on February 18, 2008, Serbian President Boris Tadic stated:
The Republic of Serbia will not accept the violation of its sovereignty and territorial integrity. The Government of Serbia and the National Assembly of the Republic of Serbia have declared the decision of the Pristina authorities [the Declaration of Independence] null and void. Likewise, we are taking all diplomatic and political measures to prevent the secession of a part of our territory. (8)
Thus, there is no doubt that Kosovo declared independence without the consent of its parent state.
A number of states support Serbia's claim to territorial integrity. (9) As of March 6, 2009, fifty-six states have recognized Kosovo. (10) When granting recognition, the recognizing states commonly refer to "special circumstances" and express the view that Kosovo's independence would contribute toward international peace, democratic and economic development, and the strengthening of human rights standards. (11) Further, there exists strong evidence that part of the international community coordinated Kosovo's declaration of independence. (12) The involvement of the recognizing states in the creation of the state of Kosovo thus did not begin with recognition but at an earlier stage, prior to the declaration of independence.
On October 8, 2008, the UN General Assembly adopted Resolution 63/3, which requested an advisory opinion from the International Court of Justice (ICJ) regarding the legality of Kosovo's declaration of independence. (13) The question referred to the ICJ reads: "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?" (14) The ICJ has yet to give an advisory opinion. (15)
The aim of this Article is to clarify the legal issues related to Kosovo's declaration of independence and the legal significance of international involvement. Initially, the Article sketches the historical, political, and legal frameworks underlying some of the current legal claims regarding the Kosovo situation. The Article then considers whether Kosovo Albanians qualify as a "people" for the purpose of the right of self-determination and in what circumstances this right may be consummated externally. In this context, a particularly relevant question is whether Kosovo can be an example in support of the "remedial secession" doctrine. (16)
The Article further considers whether Kosovo meets the traditional and additional statehood criteria. Lastly, there are different views on whether there exists an obligation of nonrecognition under Resolution 1244 in light of its reference to Serbia's territorial integrity. The Article concludes by considering these divergent views and questions whether Kosovo's statehood was constituted by the recognizing states, attempting to locate the answer in a broader context of post-1991 state creations.
II. KOSOVO: HISTORICAL, POLITICAL, AND LEGAL FRAMEWORK
A. Kosovo, Serbia, Yugoslavia, and International Aspects
1. Autonomous Status Within the SFRY and Background
After the medieval Serbian state lost the Battle of Kosovo, (17) the territory came under Turkish rule. (18) In modern times, Ottoman Turks lost control over Kosovo in 1912.19 Kosovo thus came under the de facto authority of the Kingdom of Serbia, but the Kingdom of Serbia and the Ottoman Empire never ratified a treaty on the ceding of Kosovo, due to the outbreak of World War I. (20) Following the Austrian and Bulgarian occupation during World War I, Kosovo became part of the newly created Kingdom of Serbs, Croats and Slovenes in 1918--officially renamed the Kingdom of Yugoslavia in 1929. (21) Albanians were not given full citizenship rights in this state until 1928. (22)
When Serbia took control of Kosovo in 1912, most of its population was Albanian. (23) Figures from the official census are generally not trusted among historians, but estimates suggest the Serbian population in Kosovo amounted to 24% of the general population in 1919. (24) Due to the Serb settlement policy, the number of Albanians initially diminished, but the settlement policy proved to be ineffective and the Albanian population increased over time. (25)
When the Axis powers occupied Yugoslavia in 1941, Kosovo became part of Albania, which was itself controlled by Italy. (26) With the defeat of the Axis powers, Yugoslavia, then ruled by Communists led by Josip Broz Tito, regained control over Kosovo. (27) In the 1946 constitution, Kosovo was formally defined as an autonomous province within the Republic of Serbia (28) but, unlike Vojvodina, had no independent organs for the exercise of its autonomy. (29) At that time, even unification of Kosovo with Albania was considered--an idea that should be understood in the broader context of Tito's plans to incorporate Albania into Yugoslavia. (30) This plan failed after Tito's break with Stalin in 1948, while Albania remained on a pro-Soviet course. (31) As a consequence, Yugoslav authorities mistrusted Kosovo Albanians and suspected them as potential anti-Yugoslav and pro-Albanian (which at that time also implied pro-Soviet) agents. (32) In this environment, repression of Kosovo Albanians was severe. (33) In addition to physical violence, discrimination was visible in public life, as ethnic Serbs and Montenegrins, who represented 27.5% of Kosovo's population, occupied 68% of positions in public service in 1953. (34)
The 1963 constitution defined autonomy as a right of republics "in areas of a distinct national composition or in areas of special characteristics, based on the expressed will of the people, to establish autonomous provinces." (35) The constitution further confirmed that Kosovo and Vojvodina were autonomous provinces within the Republic of Serbia. (36) The federal constitutions did not define the rights and duties or the institutional framework of the autonomous provinces, leaving them to be determined by the constitution of Serbia. (37)
Ethnic Albanians, unhappy with this situation, demanded change in 1968, for the first time openly calling for the creation of a separate republic of Kosovo, within the framework of socialist Yugoslavia. (38) Following conciliatory developments between Yugoslavia and Albania in early 1960s, the position of ethnic Albanians had improved. Albanian symbols were allowed in public life, the Albanian language featured more prominently in public, and the University of Pristina opened, with both Serbian and Albanian as languages of instruction. (39) Increasingly more ethnic Albanians were also admitted to public service. (40) During this period of improving rights for ethnic Albanians, a new federal constitution adopted in 1974 reflected these changes.
According to its 1974 constitution, the SFRY was a federation of six republics and two autonomous provinces, Kosovo and Vojvodina, within the Republic of Serbia. (41) The constitution further adopted a distinction between "nations" and "nationalities." The term "nation" applied to the people attached to a certain republic, while "nationality" applied to the people attached to one of the two autonomous provinces. (42) It can be said that the constitution was an expression of internal self-determination, (43) whereby federal units were given wide powers for the exercise of effective control over their respective territories (44) and even had some limited competencies in the conduct of foreign policy. (45) Such competencies were not confined to the republics but were extended to the two autonomous provinces. (46) Further, autonomous provinces had representatives in the federal organs. (47) Such a widely conceived autonomy within the federal constitution in many respects elevated the powers of the autonomous provinces to the level of powers vested in republics.
According to the preamble to the Constitution of the SFRY, only nations were entitled to the right of self-determination, and this right extended to secession. (48) Yet, a specific constitutional provision enabling the exercise of the right to secession inherent to nations was missing. Thus, it was not entirely clear how much broader was the scope of a nation's rights than the scope of a nationality's rights.
The wide autonomy given to the provinces did not entirely satisfy the demands of Kosovo Albanians. Open demands for the creation of the Kosovar republic, within the constitutional framework of the SFRY, continued even after they received autonomous status. (49) When Slobodan Milosevic began his rise in the Serbian Party and government politics, the status of Kosovo in the 1980s was centrally important for his transformation to a nationalist leader. (50) In 1989, with Milosevic already firmly in power in Serbia, (51) a process of revision of Kosovo's autonomous status within the federation began.
2. Suspension of Autonomous Status and Aftermath
Because Kosovo's autonomy was established within the federal constitutional order, (52) Serbia could not alone interfere with this status. At the same time, Kosovo was constitutionally defined as an autonomous province within the framework of the Republic of Serbia, and, consequently, the latter retained some competencies in matters otherwise under the jurisdiction of Kosovo's autonomous organs. (53) In accordance with its powers, the Serbian Assembly prepared constitutional amendments in 1989 that aimed significantly to limit the powers of Kosovo's autonomous organs. Essential elements of effective government, exercised independently by the autonomous organs of Kosovo, would be transferred to the organs of Serbia)4 However, an inherent element of the autonomous status of Kosovo was the constitutional provision requiring any amendment interfering with this status to be confirmed by Kosovo's Assembly by a two-thirds majority. (55)
On March 23, 1989, Kosovo's Assembly was met with a heavy presence of police forces and Serbian politicians who were not members of Kosovo's Assembly. (56) Reportedly, some of those nonmembers eventually took part in the vote. (57) The amendments were approved by a majority of those who voted, though they did not reach the prescribed two-thirds threshold. (58) Regardless, the Serbian Assembly accepted the amendments as adopted by Kosovo's Assembly and formally confirmed them in a vote on March 28, 1989. (59) Kosovo's autonomy was thus effectively terminated. Federal provisions regarding institutions created for the exercise of Kosovo's autonomy (e.g., representation in the federal presidency) stayed in place but were now under the direct control of Serbia. (60)
Ethnic Albanians in Kosovo responded to this effective abolishment of autonomy with protests and the creation of parallel state institutions. On July 2, 1989, 114 out of 123 Albanian members of Kosovo's Assembly gathered in front of the Assembly building, which they were not allowed to enter, and adopted a resolution declaring Kosovo "an equal and independent entity within the framework of the Yugoslav federation." (61) This declaration did not meet procedural requirements to be legally relevant, (62) but neither had the vote on constitutional amendments that effectively abolished Kosovo's autonomy. (63) The Serbian response was that both Kosovo's Assembly and government--its organs of self-government--were dissolved. (64)
Albanian members of Kosovo's dissolved Assembly met again in a secret meeting on September 7, 1989, and proclaimed the Constitutional Act of the Republic of Kosovo. (65) This was not a declaration of independence. The Act adopted by this group aimed at creating a republic of Kosovo within the framework of the SFRY. After 1989, the underground political life of Kosovo Albanians became increasingly vivid. The political elite grew and recruited beyond the former Communist representatives in Kosovo's suspended self-governing organs. (66) In this environment, a moderate Democratic League of Kosovo became the dominant political party. (67)
With the dissolution of the SFRY, which began in 19916s and was completed in 1992, (69) the political demands of Kosovo Albanians changed. Because the SFRY no longer existed, the demand of ethnic Albanians for Kosovo to become one of its constitutive republics no longer corresponded to reality. At the same time, not even the possible status of a third republic in the association of Serbia and Montenegro seemed to be a realistic option. (70) The dissolution of the SFRY thus resulted in the push by ethnic Albanians for Kosovo to become an independent state. (71) On September 22, 1991, the underground parliament of Kosovo Albanians proclaimed the Resolution on Independence and Sovereignty of Kosovo. (72) The decision was subsequently confirmed at an underground referendum held between September 26 and 30 of the same year. (73) A reported 87% of the electorate voted in the referendum, and 99.87% of the votes cast were in favor of independence. (74). Following the referendum, the underground parliament declared independence on October 19, 1991. (75) Only Albania recognized Kosovo's independence. (76)
On May 24, 1992, Kosovo held elections for its underground assembly, and the Democratic League of Kosovo won overwhelming support. (77). The League supported a peaceful revolt against oppression, tried to internationalize developments, and created parallel institutions of the putative Republic of Kosovo. (78) Meanwhile, the oppression of ethnic Albanians by Serbian forces continued--by direct and indirect measures--attempting to change the demographic picture of Kosovo. These measures included administrative rules that virtually prevented ethnic Albanians from acquiring property (79) and a settlement policy that included the settlement of Serb refugees coming from conflict areas in Croatia and Bosnia-Herzegovina. (80) Access to healthcare services for ethnic Albanians was also hampered. (81) Writing in 1998, Noel Malcolm observed:
To produce an adequate survey of the human rights abuses suffered by the Albanians of Kosovo since 1990 would require several long chapters in itself. Every aspect of life in Kosovo has been affected. Using a combination of emergency measures, administrative fiats and laws authorizing the dismissal of anyone who had taken part in one-day protest strike, the Serb authorities have sacked the overwhelming majority of those Albanians who had any form of state employment in 1990. Most Albanian doctors and health workers were also dismissed from the hospitals: deaths from diseases such as measles and polio have increased, with the decline in the number of Albanians receiving vaccinations. Approximately 6,000 school-teachers were sacked in 1990 for having taken part in protests, and the rest were dismissed when they refused to comply with a new Serbian curriculum which largely eliminated teaching of' Albanian literature and history. (82)
In this environment, Kosovo Albanians organized not only parallel political institutions but also parallel systems of education and healthcare. (83) Kosovo thus became an entity of two parallel societies in which the majority population faced discrimination in virtually all segments of life due to its ethnic background.
3. The Rambouillet Accords, the NATO Intervention, and Their Repercussions
In November 1995, the United States sponsored peace talks at Dayton, Ohio, that led to the settlement of the conflicts in Bosnia-Herzegovina and Croatia under the so-called Dayton Peace Accords. (84) Some have argued that disappointment over the fact that Kosovo was not included in this settlement was the turning point in the attitude of Kosovo Albanians toward the settlement of the Kosovo question. (85) After years of peaceful resistance by the Democratic League of Kosovo, (86) the militant Kosovo Liberation Army (KLA) now emerged. (87) Serbian oppression escalated in response. (88) The UN addressed the situation in Kosovo with Security Council Resolutions 1160, (89) 1199, (90) 1203, (91) and 1239. (92) The first three were adopted under the authority of Chapter VII of the UN Charter. (93) The resolutions called for a political solution to the situation in Kosovo; (94) condemned the violence used by organs of the Federal Republic of Yugoslavia (FRY), as well as violent actions taken by Kosovo Albanians (the latter were called "acts of terrorism"); (95) and, affirming the territorial integrity of Serbia, (96) expressed support for "an enhanced status of Kosovo which would include a substantially greater degree of autonomy and meaningful self-administration." (97)
While the violence in Kosovo continued, negotiations between the FRY and Kosovo Albanians began in February 1999 at Rambouillet, France, with the aim of achieving a political settlement. (98) On February 23, 1999, the Rambouillet Accords on Interim Agreement for Peace and Self-Government in Kosovo were drafted. (99) The document sought to establish conditions for the termination of hostilities in Kosovo (100) and foresaw meaningful self-government for Kosovo based on democratic principles. (101) In this context, the Rambouillet Accords included a constitution for Kosovo (102) that established self-governing organs with far-reaching powers. (103) The document further foresaw NATO peacekeeping (104) and a withdrawal of Serbian military and police forces from Kosovo. (105) The Rambouillet Accords stressed the territorial integrity of the FRY in both the preamble (106) and the operative articles. (107)
The Rambouillet Accords notably anticipated a comprehensive arrangement for the exercise of the right of self-determination by Kosovo Albanians, while avoiding the use of this term. (108) At the same time, unequivocal references to the territorial integrity of the FRY excluded the possibility of a new state creation. (109) Further, despite the wide powers of the self-governing organs in Kosovo, clear links were established between those organs and their federal counterparts. (110) Kosovo was thus meant to be an entity with a very high degree of self-government but still legally anchored within the international borders of the FRY.
The Accords were signed by representatives of Kosovo Albanians on March 18, 1999, while the FRY and Serbia refused to sign. (111) Following this refusal, on March 24, 1999, NATO started a military campaign against the FRY. (112) A full discussion of the legality of the NATO intervention is outside of the scope of this Article. Suffice it to recall that, given the absence of the authorization of the use of force in relevant Security Council resolutions, (113) the NATO intervention is generally perceived to be in breach of the UN Charter. (114) However, attempts have been made to situate it within the scope of international law outside of the UN Charter. As has been observed:
[T]he prevailing opinion amongst member States of the organisation [NATO] was that, since the resolutions of the Security Council were not able to provide sufficient legal cover for the application of armed force against the FRY, an alternative rationale in international law would need to be found, and that this rationale was located in the right of humanitarian intervention in customary international law. (115)
This argument does not suggest that humanitarian intervention outside of the UN Charter accommodation (i.e., not authorized by the Security Council under Chapter VII) is lex lata, but perhaps it is lex ferenda. (116) In this context, the NATO intervention might have laid a foundation for the development of a new customary rule of humanitarian intervention without an explicit Chapter VII resolution, but this was not a customary rule at the time of intervention, nor did it create such a rule. (117)
The NATO intervention brought an end to the grave humanitarian situation in Kosovo and, therefore, may well be justified on ethical grounds. (118) However, the action was in breach of the UN Charter, and, in absence of a customary rule allowing for use of force regardless of circumstances, it is impossible to conclude that the NATO intervention was legal under international law as it currently stands.
The end of hostilities between NATO and the FRY was achieved on June 9, 1999, by the signing of the Military Technical Agreement at Kumanovo, Macedonia. (119) The Agreement reaffirmed "deployment in Kosovo under UN auspices of effective international civil and security presences" and noted that "the UN Security Council is prepared to adopt a resolution, which has been introduced, regarding these presences." (120) It anticipated a "phased withdrawal of all FRY forces from Kosovo to locations in Serbia outside of Kosovo" (121) and provided that:
[T]he international security force ("KFOR") will deploy following the adoption of the UNSCR [United Nations Security Council Resolution] ... and operate without hindrance within Kosovo and with the authority to take all necessary action to establish and maintain a secure environment for all citizens of Kosovo and otherwise carry out its mission. (122)
The Military Technical Agreement thus severely limited the sovereign powers of the FRY (particularly Serbia) in Kosovo and echoed the spirit of the Rambouillet Accords. (123) Given the use of force against Serbia, (124) one might argue that Serbia was coerced into signing this Agreement. However, similar provisions were adopted and further developed by Resolution 1244.
B. From Resolution 1244 to the Declaration of Independence
1. Resolution 1244 and the Effective Situation
Resolution 1244 was adopted under Chapter VII of the UN Charter on June 10, 1999. (125) The preamble to Resolution 1244 reaffirmed "the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and annex 2." (126) Yet, the Resolution's operative paragraphs created a situation that is not easily reconciled with the principle of territorial integrity.
The Resolution initially demanded "that the Federal Republic of Yugoslavia put an immediate and verifiable end to violence and repression in Kosovo, and begin and complete verifiable phased withdrawal from Kosovo of all military, police and paramilitary forces according to a rapid timetable." (127) The Resolution allowed for the return of "an agreed number of Yugoslav and Serb military and police personnel" (128) after the withdrawal. However, as follows from Annex 2 (to which the commitment to territorial integrity expressed in the preamble refers) this return was merely symbolic, (129) and the number of personnel returned was severely limited. (130)
The Resolution further called for the deployment of "international civil and security presences," (131) authorized "the Secretary-General to appoint, in consultation with the Security Council, a Special Representative to control the implementation of the international civil presence," (132) and called upon "Member States and relevant international organizations to establish the international security presence in Kosovo." (133)
In accordance with Resolution 1244, the Special Representative of the Secretary-General promulgated a document which vested broad authority in the UN Interim Administration Mission in Kosovo (UNMIK). Section I of the regulation (entitled "On the Authority of the Interim Administration in Kosovo") provides:
1. All legislative and executive authority with respect to Kosovo, including the administration of the judiciary, is vested in UNMIK and is exercised by the Special Representative of the Secretary-General.
2. The Special Representative of the Secretary-General may appoint any person to perform functions in the civil administration in Kosovo, including the judiciary, or remove such person. Such functions shall be exercised in accordance with the existing laws, as specified in section 3, and any regulations issued by UNMIK. (134)
The regulation specified that the applicable laws in Kosovo were those in force prior to March 24, 1999. (135) There was, however, an important limitation to this general proclamation, as the laws could be overridden by internationally recognized human rights standards, as well as by powers of UNMIK stemming from Resolution 1244 and subsequent regulations issued by UNMIK. (136)
Resolution 1244 does not make an express reference to the right of self-determination. However, it invokes several principles associated with the exercise of this right. In this regard, the Resolution spelled out that the international civil presence in Kosovo was established
in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo. (137)
The Resolution identifies "promoting the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo" (138) and "[o]rganizing and overseeing the development of provisional institutions for democratic and autonomous self-government pending a political settlement, including the holding of elections" (139) as the main responsibilities of the international civil presence.
Drawing authority from Resolution 1244, the Special Representative promulgated the document entitled "Constitutional Framework for Provisional Self-Government." (140) The chapter on basic provisions of the Constitutional Framework provides:
1.1 Kosovo is an entity under interim international administration which, with its people, has unique historical, legal, cultural and linguistic attributes.
1.2 Kosovo is an undivided territory throughout which the Provisional Institutions of Self-Government established by this Constitutional Framework %1" Provisional Self-Government (Constitutional Framework) shall exercise their responsibilities.
1.3 Kosovo is composed of municipalities, which are the basic territorial units of local self-government with responsibilities as set forth in UNMIK legislation in force on local self-government and municipalities in Kosovo.
1.4 Kosovo shall be governed democratically through legislative, executive, and judicial bodies and institutions in accordance with this Constitutional Framework and UNSCR 1244(1999).
1.5 The Provisional Institutions of Self-Government are:
(b) President of Kosovo. (141)
By repeatedly invoking "self-government" and noting the "unique historic, legal, cultural and linguistic attributes" of the people of Kosovo, the Constitutional Framework clearly adopted self-determination language. (142) Further, it also created an institutional framework for the exercise of self-government. (143) In regard to representation in these institutions, the Constitutional Framework enacted an electoral system based on democratic principles (144) and stipulated the protection of human rights. (145) The institutions of self-government were vested with powers over the territory of Kosovo comparable to those of authorities of sovereign states; however, their independence remained limited by their subordination to UNMIK authority. (146)
The Constitutional Framework did not foresee the organs of the FRY or Serbia having any authority over the decision making of Kosovo's self-governing institutions. Thus, although Resolution 1244 states that the aim of the interim administration is that "the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia," (147) the situation in fact implies Kosovo's autonomy within the interim administration. Indeed, "UNMIK [had] assumed what [was] effectively (though not in name) the federal-type role of the Serb and FRY authorities, …