1991 the Acquired Rights of Kosovo

Article excerpt

FOLLOWING THE UN GENERAL ASSEMBLY'S BACKING OF A CORRESPONDING REQUEST FROM SERBIA, THE INTERNATIONAL COURT OF JUSTICE IN THE HAGUE IS NOW SET TO DEAL WITH THE QUESTION, ON WHICH EXPERT OPINION IS DIVIDED, WHETHER THE UNILATERAL SECESSION OF KOSOVO ON 17 FEBRUARY 2008 ACCORDED WITH INTERNATIONAL LAW. IN THIS CONTEXT, THE AUTHOR OF THE FOLLOWING CONTRIBUTION CONSIDERS IT USEFUL TO RECALL THE STATUS OF KOSOVO FROM ITS POSITION IN THE YUGOSLAV CONSTITUTION OF 1974 TO ITS POSITION DURING THE FINAL COLLAPSE OF YUGOSLAVIA IN 1991 AND THE RESULTING CONSEQUENCES.

The Yugoslav Constitution of 1974 brought very significant changes to the whole state organization of Yugoslavia and roughly expressed prevailing opinions of the time; this included the desire of each nation to lead its own national, political, and even economic existence within a prosperous Yugoslav state. The organizing principle, which was implemented in order to guarantee an orderly and equitable coexistence between the individuals and peoples of Yugoslavia, was described as cooperative federalism. On this basis, the Yugoslav constitution devolved extensive rights and obligations to the members of the Federation, and established mutual cooperation based on equal rights between them.

The Legal Status of Kosovo

Few people know that Kosovo was a unit distinct from the other Federation members with full-fledged normative rights in the Yugoslav Constitution of 1974. Kosovo was placed on an equal footing with the other seven members of the Federation (Croatia, Serbia, Macedonia, Slovenia, Bosnia-Herzegovina, Montenegro and Vojvodina) in all normative aspects and provisions of the federal constitution; it enjoyed the same extensive constitutional and legislative autonomy and the same rights of participation in the Federation. The whole territory guaranteed under Kosovo's own constitution, which had been adopted by virtue of the federal constitution on which it was based, could not be altered without Kosovo's consent. Even a change in the external borders of Yugoslavia, which were guaranteed by international law, required Kosovo's consent. In comparison with units in other European states, the Federation members had so much constitutional autonomy they could essentially determine their own internal organization independently.

The importance attached to the Federation members, or more precisely to their constitutions within the Yugoslav legal system, is embodied in the fact that the members' institutions were independent from those of the Federation itself, and that basically, a subordinate relationship did not exist in either direction between the members and the Federation. In the field of lawmaking, the federal constitution left virtually all regulative policies up to the legislature of the member-states, and largely entrusted only areas of common interest to the federal legislator, i.e. the classical, first-rank ones. In foreign policy, all eight members enjoyed an even stronger position; within the framework of their limited responsibilities, they were able to operate abroad through their own "foreign ministries" rather than through the agency of federal institutions.

The normative-legal provisions also bore on the members' participation rights and equality within the Federation. Participation rights were extensive and substantial, i.e., the volition of the eight members had decisive influence on decision-making in various federal institutions. Members were allowed to participate in the Federation's constitutional lawmaking, at the conclusion of certain international conventions, and in the election of their own delegates to the various federal institutions.

In the field of equality, Kosovo enjoyed a privileged status within the Federation; its citizens, on the basis of the federal, Kosovar, and Serbian constitution, held a kind of "dual citizenship." Thus, they could take part in their own as well as Serbia's constitutional lawmaking. …