Prof. Dr. Hajredin Kuçi, Law Faculty, Prishtina, Kosovo

The legal and political grounds for, and the influence of the actual situation on, the demand of the Albanians of Kosovo for independence

I. Introduction

The time in which we live and the holding of this symposium are closely connected with the legal and political situation in my country, Kosovo, and more widely, and express the special interest for every citizen and more widely, whether they are concerned with science, politics, art or any other field, since it is vital for their future. The set theme for this symposium represents an issue which surpasses the sphere of full treatment as a matter of internal sovereignty and becomes as it were simply an issue with international dimensions and particular influence in the region. And today’s treatment, the organization and participation of scholars and various personalities, whose thinking brings its influence to bear on this question, shows their dedication and provides the motivation for deep and well-argued thinking based on scientific values acceptable not only to the majority people of Kosovo but also to the international community, whose interests coincide in this case. With a sense of privilege that I am participating as co-organiser and active participant, and with heartfelt thanks to all those who gave me this opportunity, allow me to express my considerations to my friend and friend of my country, of scientific thought and intellectual courage, Prof. Henry Perritt and his staff, and also to Prof. Benedekun from Graci, to all present, and at the same time, to express some points of view on the subject I have tabled for discussion.

The dissolution of the former Yugoslavia was one of the greatest and most difficult processes in Europe after the Cold War. One part of the process of dissolution concluded with the Dayton Peace Accord, but the other, more difficult part, Kosovo, long remained unresolved. Kosovo was the main problem in former Yugoslavia, and yet it was ignored for a long time. The situation in Kosovo, particularly in recent years, was not merely a large Albanian-Serbian problem but also an international one. Kosovo in 1999 was the greatest problem in the international arena, one of the greatest since the Second World War, and a test of the international community’s problem-solving ability after the Cold War.

The purpose of this working paper is to give a brief reflection on Kosovo, her people and the roots of this problem. In particular, it is aimed to elaborate on the right to self-determination of the Albanian people of Kosovo according to international standards viewed from a legal, political and security perspective.

In the first part we shall attempt to present briefly Kosovo and her people from a historical, geographical and geostrategic perspective. The reason for this presentation is our documentation of the historical, demographic, and natural right, and strategic interest of Albanians and of her people to self-determination and independence, but also for a positive influence in the region.

The time of the end of the Cold War, respectively of the dissolution of the former Yugoslavia and the change of Kosovo’s position at that time, has been seen as the first attempt at upsetting the balance in the former Yugoslavia. The analysis of the dissolution of the former Yugoslavia was also the reason why this was the most appropriate moment for the Albanians of Kosovo to realize their historic aspirations and to orientate the Albanians of Kosovo according to a western perspective.

Examination of the right to self-determination from the legal and international point of view received special treatment as the main method of achieving the major aims. This treatment was based on international theory and practice concerning the right to self-determination of peoples in the time after the Cold War, and in this context, in the case of Kosovo. To the intent of making full argumentation, historical, legal, democratic and demographic sources were used, as well as the newly-created reality in Kosovo.

The treatment of this right from the security perspective had more of a regional connotation, since this has often been presented as an obstacle to recognizing Kosovo’s independence. Here arguments were presented from theory, from the very life and history of Kosovo and the Albanian people, that the alternative would destabilise the region, and doubts concerning destabilization of the region seem historically to have received a negative response.

This whole working paper is a small scientific contribution to the historic and legal right of Albanians and of Kosovo to self-determination and independence.

II. A brief overview of Kosovo

Kosovo is situated in the south-western part of the Balkans. It is one of the smallest countries of Europe, not only as regards territorial extent but also as regards number of inhabitants. Kosovo occupies a central geographical position in the Balkan Peninsula. Kosovo’s geographical space, albeit a relatively small territory, has always possessed great geographical and geostrategic importance. Kosovo has a geographical position continuous with ethnic Albanian geographical space and has always played a central role in historical efforts to safeguard and integrate the entire national territory. As regards natural distinctives, the borderline extends chiefly through the highest mountain regions, however from the ethnic perspective that line, in almost its entire length, divides territories inhabited by similar populations, that is, the border is non-ethnic.

The present borders of Kosovo are the product of political history and at the same time they correspond more or less with the physical facts.[1] Kosovo has a homogeneous ethnic structure. The overwhelming majority of the population is Albanian, while the remainder consists of Serbs, Turks, Bosnians, Roma etc.

The ancient history of Kosovo, and Kosovo Albanians respectively, cannot be viewed in isolation from that of Albanian in general. The Albanian people of Kosovo is one of the oldest peoples of Europe. No people is more ‘connected’ with the history of the Balkans than this. The history of the Balkans cannot be understood and complete without a knowledge of the history of the Albanians of Kosovo.[2]

The Albanians are descendants of the Illyrians. The Illyrians lived in the territory of Albania, Kosovo and a large part of former Yugoslavia. Kosovo itself is a part of the land of the Dardans, an Illyrian tribe.[3]

The Albanians of Kosovo speak their own unique language, Albanian, with a Latin alphabet modified in November 1908 at the pan-Albanian Conference in Manastir (Former Yugoslav Republic of Macedonia) and today they use, with Albania, the version standardized and unified in 1972. The Illyrian origins of the Albanians and their language has been confirmed by many scientists, including even those of former Yugoslavia such as the author R. Katicic who, speaking of the territory in which the Albanian language developed from Illyria, says: “The territory corresponds in general with the modern state of Albania, but also extends to the territory of Yugoslavia and Greece”.[4]

At the crossroads of the Balkan wars, half of the Albanian people and more than half of the lands with an Albanian majority found themselves outside the Albanian state, occupied by neighbouring states. Since that time, a military police regime was imposed in these lands and a policy of genocide, expropriation and expulsion of the Albanian people from its own lands was pursued. These actions, unfortunately, were justified several times by certain of the great powers. At the end of the Balkan wars the position of the Albanians was described thus by the author Castellan: “This (Albanian) people was unfortunately thus left again at the mercy of internal anarchy and interventions by foreign armies.”[5]

Many native and foreign authors describe the fate of Albanians and Kosovo through the centuries, but also even by Serbian authors such as the academic Dedijer when he wrote: “It would seem that never has any country, and the interests of any people, been dealt with so shamefully in peace conference as is the case with the people of Kosovo”.[6]

From the Albanian perspective these actions of the Serbs have been seen as actions against an occupied and colonized people. Kosovo after the Serbian occupation in 1912 was turned into a land of terrible suffering for the Albanian people which was threatened with extinction”.[7] Kosovo and the Albanians of Kosovo were pillars of Albanians’ national resistance in former Yugoslavia.

The Albanians of Kosovo have two dominant religions, Islam (the majority), and the rest Catholic Christian, and a very small number of the Orthodox faith. There has never been any political religious movement among the Albanians. If we survey the past we can find many instances of mixed religious life. Kosovo Albanians were politically mobilized in many directions in recent years, but religion has never played a part in this mobilisation.[8]

In Kosovo, down the centuries, many battles and wars have taken place, but during the last one hundred years many of these have been of the nature of an ethnic conflict between Albanians and Serbs. The history of relations between Albanians and Serbs in Kosovo may be described as a history of conflict.[9]

The dissolution of the former Yugoslavia was an opportune moment for the people of Kosovo to realise its legitimate aspiration for self-determination. Inter-ethnic tensions rose even further, and mistrust between Serbs and Albanians deepened at the same time. The roots of this conflict are deep and date from the time of occupation of Kosovo by Serbia.[10]

III. The disintegration of former Yugoslavia and the position of Kosovo

The creation and dissolution of former Yugoslavia occurred as a result of major geopolitical changes.[11] Yugoslavia was a country created by the international community.[12] After the death of the former Yugoslav leader Tito, the federal centre began to fall, gradually at first, but rapidly after 1987.[13]

Problematic relations between the nations were always present in the former Yugoslavia. A principal cause of this was the creation of equal relations between Croats and Serbs since both these nations were always vying for dominance in this federation. The Serbs were more successful at this game and the result of this was the domination of ‘the Serbian hegemony’. Socialist Yugoslavia survived while this domination was successful and while this hegemony held sway.[14]

The slogan of ‘fraternal unity’ on which Yugoslavia lived caused it to live as a supernationality. This position was taken on the basis of national identity in the final phase of socialism.[15]

The developments of the 1990s in former Yugoslavia can be considered as the result of the connection between the rise of nationalist conflict and the fall of the supernational identity.[16] The explosion of nationalism in the former Yugoslavia was a provocative phenomenon, not only because of its political consequences (the war), but also because it also raised various theoretical and analytical issues.

Former Yugoslavia entered the final phase of her dissolution in the middle of 1991 when Slovenia and Croatia empowered their Declaration of Independence (in June 1991) and when the Yugoslav People’s Army intervened in defence of the territorial integrity of the country.[17]

The Albanian-Serbian conflict, although not a decisive factor in the unraveling of the multinational federation of Yugoslavia, was nevertheless the initial and structural factor in this unraveling.[18] Kosovo 25 April 1987 became the date of the self-destruction of the former Yugoslavia and the date when preparations for war were formally made.[19] Here in Kosovo Field was the first promotion of the psychological preparation, it was a hysteria which resulted in the dream of creating a Greater Serbia. On this date Milosevic gave Serbs the great promise that “No one will defeat you”.[20]

When the dissolution of former Yugoslavia began, it was plain that Serbia intended to implement its Nationalist Programme for a Greater Serbia (especially after 1989) and its centralist tendencies became more visible than ever before.[21] A similar view was also held by the then US Secretary of State Mr. Baker, who speaking in the name of the USA in the UN Security Council on 25 September 1991, at the time of passing Resolution 713 on the arms embargo against former Yugoslavia, declared: “It is a clear objective of the Serbian leadership to create a ‘little Yugoslavia’ or ‘a greater Serbia’… based on the kind of repression which the Serbian authorities have used for years in Kosovo….”[22]

From the time of the collapse of former Yugoslavia, there have been express tendencies by all parties to rewrite history placing themselves in the brightest position and offend their opponents.[23]

Personalities, as always, have played an important role, and certain players presented themselves here who exploited the communist climate and lack of democracy. In 1990, Serbia, led by Milosevic, completed the re-influencing of Kosovo, Montenegro and Vojvodina so as to make them her satellites, and accordingly to control four out of eight votes in the collective presidency of former Yugoslavia. The ability of Milosevic and Serbia to block the work of this Presidency was a symptom of the disintegration of former Yugoslavia. Thus it happened in May 1991 when the Presidency, which came from Yugoslavia by rotation, was blocked. This act marks the conclusion of the institutional destruction of former Yugoslavia.[24]

From the constitutional point of view, on the other hand, the unilateral change of status of Kosovo and Vojvodina marked the start of the violent process of disintegration of former Yugoslavia. This marked the start of radical changes in the balance of forces between the federal units of former Yugoslavia with an open hegemony on the part of Serbia.[25]

The final act of preparing Serbia for war occurred in December 1990, when the Milosevic regime, without the knowledge of the Central Bank, took two billion dollars’ worth of Yugoslav dinars. Thus all the resources of the Central Bank, such as foreign currency, gold and other valuables, were taken and used to finance the war.[26]

When open war began in Croatia (September 1991) and Bosnia-Herzegovina (March-April 1992), the army came out openly on the side of the Serbs for the creation of a Greater Serbia.[27]

From the beginning of the 1980s the Serbs used a wide range of racist arguments to fill out anti-Albanian sentiment.[28] The myth of Kosovo has always been a principal part of the Serbian psyche. It has represented a historical, quasi-historical and poetic consciousness of the Mediaeval Serbian state as opposed to the Ottoman Empire. The myth of the Battle of Kosovo has been raised every time Serbia has gone to war. Serbs in Kosovo saw their history and their present as heroic, missionary, as a matter of pride, demonisation, victimization etc.[29]

The efforts of Slovenia and Croatia to gain independence (Mars- June 1991), of Macedonia and Kosovo (September 1991), of Bosnia-Herzegovina (March-April 1992) – all these were made as a result of the aggressive behaviour of Serbia towards others in the former Yugoslavia. The Slovenes and Croats wishes to lose the federation and thus to drive away the Serbian influence, whereas Bosnia and Macedonia were not as clear at that time. On the other hand Serbia wished to protect a strong federation and her political and economic control as well as her dominant role in Yugoslav society.[30]

The international community did not understand in time Serbia’s and Milosevic’s intention. The support for keeping the territorial wholeness of the federation, which came from influential states and organizations, including the USA, EU and OSCE, doubtless strengthened Milosevic in his policy, and flexibility in negotiations was not demanded. This lasted until the international support for the independence of Slovenia and Croatia.[31]

On 19 September 1992 the UN Security Council passed Resolution No. 777 in which it is noted that “the state formerly known as the FSR of Yugoslavia has ceased to exist” and that “FRY (Serbia and Montenegro) cannot automatically continue the membership of the FSR of Yugoslavia in the United Nations,” and at the same time it was recommended that the FRY apply for membership of the UN.[32] Likewise the International Monetary Fund, in its Declaration of 15 December 1992, stresses: “Yugoslavia has ceased to exist, and with this her membership in the IMF has also ceased.” At the same time, the executive directors of the World Bank said that Yugoslavia has ceased to exist.[33] Likewise, in the thirteenth opinion of the Badinter Commission, the conclusion was reached that owing to the dissolution, which began in November 1991 and concluded in July 1992, the former FSR of Yugoslavia has ceased to exist as a legal international subject.[34]

All the evils which occurred upon the dissolution of former Yugoslavia were also present in the Balkan wars, including the high level of civilian massacres, destruction of whole cities and dwellingplaces, and the great manipulation of the media.[35]

With the exit from former Yugoslavia even of the Slav peoples themselves, the Albanians of Kosovo no longer had any reason to remain in the new creature of Serbia and Montenegro. Albanians have no reason to thank and value the leadership of Belgrade. Inter-ethnic tensions were high in Kosovo over the years but they deepened further at the time of the dissolution of former Yugoslavia.[36] Our academic, G. Zajmi, stresses in connection with the dissolution of former Yugoslavia in relation to Albanians: “The Albanian people in former Yugoslavia has the least reason to mourn the dissolution of the former Yugoslav federation or to be satisfied with the manner of the dissolution of this federation.”[37]

The dissolution of the former FSR of Yugoslavia and the creation of new circumstances in that territory was an opportune political moment for a political movement towards the realization of the historic and legitimate rights of the Albanians of Kosovo.

IV. The right of Kosovo Albanians to self-determination

a) Treatment of Kosovo’s right to self-determination at the time of the dissolution of the former FSRY

The right to national self-determination is very attractive since it represents two values, first, recognition of the right of peoples to live according to their culture, and is consistent with the demands and aims of the principles of democracy.[38] The principle of self-determination is one of the most important principles of modern international law. This principle represents at the same time one of the most difficult principles to apply, for which reason the greatest human and national efforts have been made. It is a cause of wars and peace in many regions and for many countries and peoples. It is a principle dreamed of for centuries and came into use after the Second World War and has undergone several phases. Until 1989-1990 this right this right was quite restricted and it was thought that it belongs only to countries under colonialism. This has issued in a way as an interpretation of the Declaration of 1970 and not of practical and theoretical circumstances, since even then there existed opportunities and demands for the realization of this fundamental right outside the context of colonial countries.

The failure of communism opened the possibility of extending this international principle. It very quickly changed its approach, but also its method of implementation. A new approach was noticed towards countries which were previously united by free will or by force in state unions and now sought independence. Even those countries whose constitutions did not envisage such a right were enabled to realise it. On the other hand this right was realized in a non-uniform manner, according to international standards, depending rather on the country, circumstances and inter-ethnic tension. Thus several states achieved the right to self-determination in a calm and stable way, as was the case with the former Czechoslovakia, whereas others did so with terrible violence as in the former Soviet Union and especially in former Yugoslavia.

After the end of the Cold War the international community attempted to give some orientation to the conditions, possibility and manner of realization of the right to self-determination. The principle of self-determination has been interpreted in various ways by the international community as a response to the dissolution of communist states. Thus the European Union (at that time the European Community) was the first to involve itself in this context. The right to self-determination (expression of free will) according to the European Union was considered to belong only to those who have lived inside the federal type of republics. Such a right was denied other ethnicities, implying as it does the expression of free will and creation of their own state. This stance of the European Union was sanctioned in the opinion its Arbitration Commission, called Committee, which was founded in the context of the Hague Conference on Yugoslavia (September 1991) and in the Position on Recognition of New States in Eastern Europe and the Soviet Union, of 1 December 1991.[39]

Thus the right to self-determination up to secession was recognized in the case of those ethnicities which have enjoyed this right expressly according to their constitutions as was the case in several instances (Soviet Union and Czechoslovakia) or others who have enjoyed an advanced status (type of republic) within communist federations. In this way ‘constitutional dissolution’ was legitimized, based entirely on the communist interpretation of the principle of self-determination, recognizing this right in those in whom this right or its opposite was recognized by communist criteria.[40]

In a way, the European Union accepted the facts as laid down by the communist model in their constitutions. This is seen in the initial opinion of the Badinter Commission of November 1991, where it was stated, “The constitutions are the main fact.”.[41]

Based on this fact certain legal and political and dogmatic-constitutional concepts were legitimized having to do with the form and manner of communist determination of solutions of national questions where it was known that in those (communist) systems the communist party had decided arbitrarily who should be a republic, autonomous republic or federal ethnicity, and who a nation, nationality or national minority. Since it is well known that the idea of Stalin and Lenin on the ‘type of classes’ to whom the right to self-determination belongs has predominated in the communist systems.[42]

Unfortunately, Kosovo before the Cold War was in the framework of a communist state. As a consequence of this, even in the event of the dissolution of the former Yugoslavia and the tendency to win the right to self-determination the communist measures were applied which had been laid down years previously and far from the actual situation and will of the Kosovars. From these observations of the European Union, based on the former Yugoslav constitution, there resulted the non-recognition of the right of the Albanians of Kosovo to self-determination and independence. The observations of the European Union were also the basis for evaluating other states and organizations.

From the documents of the European Union of that time it is seen that the application of this principle was claimed to be in complete accord with justice, democracy, human rights and those of minorities. Thus they proposed that for those ethnicities to whom the right of independence did not belong, according to them, a special status should be accorded, and this was also the proposal for Kosovo.[43]

b) The legal and political basis for the self-determination of Kosovo

After the division of the Albanian nation in 1912-1913, at least half of the Albanian nation and half of the autochthonous territories populated overwhelmingly by Albanians were forced to live outside the new Albanian state. The Albanians of Kosovo have existed as a separated nation since that time.

From the time of the geopolitical division of Kosovo from Albania, the people of Kosovo has always aspired to its own identity, equality or national unity.

During the whole time that the Albanians were under the former Yugoslavia, their treatment was as a national minority, even though, since the founding of the Serbo-Croat-Slovene Kingdom, they were numerically greater than one of the founders of this kingdom.[44]

In the aftermath of the Second World War, under the communist system of former Yugoslavia, the legal and political status of Kosovo changed several times in various forms of political and territorial autonomy as in 1946, 1963 and 1974. In 1974 a wide-ranging autonomy from Belgrade was secured with broad competencies similar to those of the former socialist republics. However the right of secession was not guaranteed, just as it was not guaranteed to other federal units either. In the Constitution of 1974 of the former FSR of Yugoslavia that state was considered as a joint state of equal nations and nationalities, of republics and the autonomous regions of Kosovo and Vojvodina.[45]

In the 1974 Constitution Kosovo had its own identity, its own territory (Article 5 of the Constitution) in the field of international relations also (Article 271 of the Constitution of the FSRY).[46] Kosovo was authorized to establish the ‘National Bank’ (Article 262), to raise taxes (Article 265), etc. In addition to these extensions of competencies there was also Kosovo’s equal right to be present in all the organs of the Federation, including the former Federal Presidency (Article 321).

At the time of the fall of communism and dissolution of the former FSR of Yugoslavia, Kosovo began to build its own new identity. On the legal and political side this identity began to be built on 2 July 1990 when the Kosovar Parliament issued the Constitutional Declaration which demanded that Kosovo and its majority population be treated equally with others in the former Yugoslavia.[47] Following on from this there was the Constitution of the Republic of Kosovo, approved on 7 September 1990, which was based on the principle of self-determination and sovereign equality.[48] One year later during 26-30 September 1991, by referendum, the majority population of Kosovo, the Albanians, took the greatest step at that time towards self-determination and expression of free will.[49]

At that time, besides these formal judicial acts, which were recognized by nobody except Albania, certain actions were also undertaken by the legal representatives of Kosovo at that time towards building an independent life and international recognition of our will. Thus there was Kosovo’s request for international recognition on 21 December 1991 a few days after the European Union had accepted the fact that former Yugoslavia had ceased to exist and that the new states should apply for membership. A positive response was not given to these requests and others of the Kosovars for independence at the start of the 1990s. There exists the theoretical idea that this non-recognition occurred as a result of the failure to fulfil the basic international criterion for independence, which consists of the effective control of the territory of Kosovo by the majority population and its government at the time of the dissolution of the former Yugoslavia.[50]

Effective control or inability to control was in a way also legitimized in the positions of the international community on the dissolution of the former Yugoslavia. This position was based not so much on legal and moral arguments as on geostrategic and political ones, on the need to stop the violence and explosion of the conflict in neighbouring states.[51]

The international community would have to take into account the rise and fall of former Yugoslavia, her structure and constituent parts. Likewise, former Yugoslavia has ceased to exist and no republic has recognized her continuation, not even the so-called Yugoslavia formed in 1992. This fact was also accepted by international mechanisms such as the UN, EU and World Bank as we touched on previously. An important fact in this new creation is that no one expressed their free will by referendum for union or entry into this state.

The Kosovo Albanians have not taken part in any legal or political act in the structures and institutions of the remnant Yugoslavia, but have plainly severed their life, institutions and future from it.

Kosovo and her majority population have historically represented a special ethnic and linguistic collectivity. They had a compact territorial extent. Thus they had their own compact territory and a clear, visible national identity. Their national identity, territorial compactness and absolute majority in Kosovo were historic features of the Albanians in this land.

From the legal and constitutional point of view the independence of Kosovo after the dissolution of former Yugoslavia does not represent the elimination of borders, since Kosovo had its own unviolated borders which were accepted according to normative acts of the former Yugoslavia.[52]

Another important fact in this procedure of achieving independence is the datum that Kosovo in 1912 was annexed by Serbia after the Balkan wars, violently, by occupation. In Kosovo during the last 87 years the treatment by Serbia of the Albanian people was oppressive and genocidal. This was especially notable during the final war of 1998/99. All this gives Kosovo and the Albanian people the right and reason to independence and according to the well-known international principle, Serbia, by the violent treatment it used, loses the right to govern that territory and people.

Describing this Albanian-Serbian reality in historical and present context, international law scholar Professor Z. Gruda says, “It is known from history that nations separate only when national oppression and friction make joint life absolutely unbearable. In these cases denial of the right to self-determination and separation of nations is nothing other than an attempt to protect the privileges of the ruling nation and police methods of government instead of democratic ones”.[53]

Kosovo and her people were forcibly kept under Yugoslav, in particular Serbian jurisdiction, while lacking strength to achieve liberation or the readiness of the international community to support them. The moment Kosovo gathered the strength to break away and the will of the international community to support her rose, she left the Serbian jurisdiction.

The right to self-determination of a compact territory such as Kosovo, and one populated by over 90% of the population which desires independence, is not only a natural right on ethnic grounds, but is also a democratic right supported by positive international acts. The Kosovo Albanians’ insistence on independence is based on the democratic principle of the majority and on the fact that Albanians have been in that land for over a millennium.[54]

The Albanian people of Kosovo has shown its will in every way to separate from Serbia and be independent. They have expressed it in various ways but most vocally in the armed struggle where they showed that they desire independence despite possible sacrifices, since they consider that life in Serbia would be the greatest sacrifice of all.

The national, demographic and territorial reality of the Albanian people of Kosovo , their historical and geographical individuality and national structures based on their strong democratic will and on the principle of equality and the right to express free will, are reasonable grounds for the people of Kosovo to have the right to self-determination and be free and independent. Above all there is the shared history in a river of blood between these two peoples and no moral or democratic right could demand that Kosovo and the Albanians should repeat their savage and bloody history. Every sound reason is orientated around the viewpoint that is in harmony with the principles of modern democracy and the will of the people of Kosovo, and not a return to suffering, tragedies, massacres and hatred which has already been tried several times in history. A return to that position, Serbian jurisdiction, would not only imply a return to the horrors touched on above, but this time would also be accompanied by the responsibility of those who would be turned back and of those who support this turning back.

A great argument for secession is based on the fact that a people which does not wish to be included in a given state has the moral right to decide for itself whether it wishes to remain within the imposed borders.[55]

V. The legal and political basis from the standpoint of regional security

The struggle for self-determination and independence must also bear in mind the interests of the international community in safeguarding peace and security and other rights issuing from the acts of the United Nations. This is also the reason why this matter has been tabled at the request of the Kosovo Albanians.

Today it is well known that the question of Kosovo is a matter of great tension regarding peace and war in the Balkans and elsewhere. After several years of the status quo, during the last two years the Kosovo crisis has entered the most critical stage, that of war, as a result of many factors. Kosovo in recent years has become an important matter for the security and stability of the Southern Balkans, but also an important matter for the credibility of European security and the future of the North Atlantic alliance, as a possibility for the spread of this type of conflict in South-Eastern Europe.[56]

The importance of Kosovo for peace and stability in the region may also be noticed from her geostrategic position which has also been present practically throughout history. At the end of the last century the Serbian geographer and ethnologist Jovan Cvijic had come to a conclusion from observing a map of the Balkan Peninsula: “Whoever controls Kosovo controls not only Serbia but also the whole central region of the Balkans.”[57] Cvijic’s opinions on the importance of Kosovo for Serbia’s geopolitics decisively influenced the Serbian national programmes during the 19^th century and later.

The Kosovo crisis in the 1990s assumed international dimensions for several reasons. This is affirmed by native and foreign authors, and even by Serbian ones. According to Acimovic, a Serbian author, this happened because of human rights and the need to safeguard peace and international security.[58]

In international literature and practice since the end of the Cold War, it has been said that independence for Kosovo would endanger peace and security in the region. The many arguments for not recognizing Kosovo’s right to self-determination were governed by the need to maintain stability in the region, especially in view of the danger to the FYR of Macedonia. Seen from the formal legal angle, a decision by the Kosovo Albanians for an independent sovereign state on the basis of the results of the Referendum of 1991, does not allow any individual or subject to decide or demand any other solution than the first. The same also applies to smaller demands. And even the Kosovo people’s liberation war itself showed that they were aiming for Kosovo as an independent state, nothing more, nothing less. The war showed more clearly than anything else that Kosovo endangers peace and security if it remains under occupation, and not if it is made independent.

It was the astute observation of the late academic Gazmend Zajmi, in relation to the claim that Kosovar independence would be a destabilizing factor, when he said: “… under cover of safeguarding regional stability, full independence of Kosovo may be postponed for a while, but it would be hard for the Kosovo question to be eliminated in this regard, as an essentially democratic and balanced solution in the Balkans. Its prolongation implies the continuation of conflict and inter-ethnic tensions in the Balkans”.[59]

A long-term and stable solution of the Kosovo question cannot be linked only to its definition as an “oasis of peace”, but also to its being intertwined with justice. Peace has no meaning without justice, for such a peace is imposed and fragile.

The Albanian people of Kosovo now seeks only the right to take possession of its own country which belongs to it in the Balkans and to live free and in harmony with its neighbours.[60] It is essential that this matter penetrate into the consciousness of the Serbian people as well. As many authors stress, the separation of Kosovo from Serbia would also help Serbia to prosper and democratize. When the Serbian people should think critically and humanely about Kosovo and the myth about it, not only the people of Kosovo but also the people of Serbia should benefit.[61]

The literature shows that at the time of the Hundred Years’ War between France and England, Jean d’Arc said, “As far as peace with the English is concerned, the only way is for them to return to their country in England.”[62]

Regarding the right of the Albanian people of Kosovo to self-determination, in relation to surrounding states and regional stability, this legal opinion is relevant: “Qui iure suo utitur nemin facit iniuram” (He who makes use of his own right does no injustice to anyone).

The recent events in Kosovo the fierce struggle for independence, the sufferings, massacres, tragedies and indeed the intervention of NATO all favour the argument for the independence of Kosovo as a factor of stability. The achievement of full independence there would imply a peaceful region and territory without violence and tragedy, and the NATO mission itself would have satisfaction and would be upheld as an example of permanent stability and humanitarian mission, unbounded by time and abstract political aims.

In the context of achieving the right to self-determination amid regional stability, I shall mention the words of the Serbian academic, Dobrica Cosic, who is regarded as the father of the Serbian nation, where he says: “Self-determination is the first principle of any democratic solution… while this is not respected we shall have long war and unheard-of tragedies.”[63]

VI. The influence of the actual situation on the definition of the final status of Kosovo

The treatment of the existing situation in Kosovo where the legal situation differs from the practical, is most necessary if only because the question of justice needs addressing for a state to exist, since in the case of Kosovo, similarly to many other countries which are unique in international law, the effective exercise of power depends on the UN and the Provisional Institutions of Self-Government, and not at all on the state which formally retains sovereignty over this territory and people. This treatment is made because on the international level the achievement of legal status and legal rights is often sought via the materialization of the demand. From this viewpoint, effectiveness works as a fact, in some measure, to show one’s ability to possess the right and to meet legal obligations.

The efficiency of the exercise of power in a territory over a population influences international theory and practice. Several authors, since the beginnings of the creation of modern states, attribute great importance to efficiency, often demanding that it precede the legal side of things, or even envisaging it as an essential condition. Thus according to Groci the meaning of efficiency plays an important role in stability among subjects of international law. According to Groci suitability is decided by efficiency; the reverse would mean endless disputes.

The treatment of this question in this way is positive for Kosovo in this case, since such a situation only exists, but such a thing also has its own dangers, in the sense of tendencies and agitations for changes in the actual situation before the statutory one, or even in opposition to international law, attempting to place international law before a fait accompli. In fact a change in the actual situation which in international law is attributed to legal statutory rights and others, may lead to the involvement and use of force and violation of justice and bring instability. But this does not mean that the actual situation should be respected before statutory rights are achieved.[64] Thus, changes to the actual situation must be made on the basis of the legitimacy of the right to an independent sovereign state according to the criteria of international law.

In cases where the right to an independent sovereign state exists, in the sense of international law, and an actual situation exists in the sense of the exercise of effective power, again according to international criteria, in the case of Kosovo, recognition of the actual situation would be an act which would bridge the gap between reality and justice, and this opinion is supported by international theory and practice.[65]

All this treatment and reasoning of the actual situation in Kosovo would not justify this if it would be achieved according to international standards. In international theory, one encounters the opinion that efficiency must meet certain conditions: first, efficiency must be created with rights and obligations according to international law, which must be supported in the case of Kosovo as well. The possibility of meeting these conditions in Kosovo is very great when rights and obligations are part of the structure of leadership, but also complete security, since it is precisely the international community, and UN in particular, that exercises supreme authority in Kosovo, that is, it is the international mechanism that seeks the fulfillment of these conditions. Thus, whoever seeks the fulfillment of the conditions and evaluates them also has the opportunity to implement them according to their own criteria, which is a rare case in the world, and perhaps has the fullest mandate in the world.

It is a debatable point whether the attribute of an international subject is gained only when full efficiency is achieved. Efficiency is a precondition and legal requirement for the attribute of rights, if there could be statutory rights even if this precondition is not envisaged by traditional criteria for the existence of a state. However, efficiency, as in the case of Kosovo, creates an opportunity for her to be competent in the exercise of competence in international relations as a condition for being a state in modern times.

In the sense of traditional criteria for being a state, Kosovo fulfils all the attributes. It is well known that the traditional criteria for being a state are: possession of a permanent population and territory, the exercise of sovereignty[66] and the ability to form international relations. Here there is no question of requiring a special people or a minimum size of population or territory. But two conditions are required, first an intention to live permanently in that territory, and secondly, the territory sought must be habitable. Now it is clear to everyone that the citizens of Kosovo wish to live permanently and that her territory is habitable.

Being a state requires definition of the territory even if it is not completely defined in its external borders. Kosovo here fulfils this condition as a whole, since it is well known that during her history under Serbia, or to be precise former Yugoslavia, she has had her own territory, especially as defined by the Constitution of 1974 of the former FSRY.[67] In this case, according to international theory and practice, they are not required to be borders uncontestable by neighbouring states. Thus was the case with many states after the First World War, and indeed even of Albania itself during the declaration and recognition of her own independence. But this does not mean that the external borders do not need to be fixed in the sense of showing whose territory is in view.[68] In the case of Kosovo, it is quite clear that their request is defined in a territorial sense; this is more than clear in their requests, or if it be taken in a symbolic sense, it may be observed even in their symbols in post-war institutions, where the map of Kosovo may be seen.

The exercise of sovereignty is one of the conditions for being a state. Or to put it differently, to be a state there must be a government. Even though the form of government is not precisely defined, in international theory and practice the opinion predominates that it must be in accord with the people’s right to self-determination and it must fulfil two criteria, first, to be politically institutionalised as an executive and administrative machinery with the aim of regulating relations in society, and secondly, to be an effective government so as to exercise state authority over the territory and people.[69] To the end of meeting this condition and its subconditions, Kosovo has a democratic government chosen by her citizens, in elections organised and supervised by the international mechanisms of the OSCE, UN, EU and other mechanisms. Likewise this government functions on the basis of legal acts, the constitutional framework and other laws passed by the legislative organs and approved by the Special Representative of the UN Secretary-General who exercises his authority on the basis of these legal acts which are in accordance with international standards and together with international mechanisms, with the forces of NATO with regards to security, the police forces of the UN for maintaining law and order, with the judicial system under the control of UNMIK and with international judges and prosecutors, likewise with an international presence in every institution of Kosovo.

In the sense of full exercise of its powers, the observation may be passed on the Government of Kosovo that it is still under the tutelage of the UN and that in the case of many powers it does not itself exercise them, but they are exercised by the international community. I think that this is a good basis for creating the state structure, and that it is being built as a whole according to recognised international criteria and that the gradual transfer of powers will help this effective exercise, but is also in accord with the required international criteria. This is no hindrance since in contemporary international law the government as a constituent element of a state must be seen as a kind of coherent political structure based on a legitimate title to exercise authority over the territory and populace and not necessarily as a criterion for the existence of a sophisticated administration and the full exercise of authority over the territory of the state and its people.[70]

Another condition in modern times is the ability to enter into international relations. In the sense of meeting this condition, if the factual aspect is examined, we may observe concerning Kosovo that it has not created international relations, or to put it differently, it has not opened diplomatic missions. The first issue is that according to existing legal acts the representatives of the UN as whole have the right to create international relations and that even attempts to do something in this direction are hindered. However, we should support the opinion that predominates in the theory of international law, which is similar in the case of Kosovo, that this request cannot be tabled as indispensable in the sense of having relations with other states, as this also depends on existing states, but here there needs to be a machinery which is able and authorised legally to form agreements so as to represent the state to states and other subjects of international relations.[71] If the structural state in Kosovo is seen, there is no dilemma in the fact that Kosovo is ready to create a competent machinery which will exercise authority in the sense of building international relations with states and other international subjects.

All this which has been said is a normal procedure according to international theory and practice on recognising new states even though in international practice we also have cases outside these criteria, especially that of efficiency. Thus there are states which are recognised even without meeting the conditions of full efficiency or meeting these conditions, as is the case with Croatia, Georgia etc, but the very act of international recognition as a state has enabled them to exercise effective control in their territory, and Kosovo could have done this had it been recognised before 1998 at the time of formal declarations that it was an independent sovereign state, whereas after the NATO forces’ intervention in Kosovo effective exercise of control by Serbia was severed, and now the situation has passed to the effective exercise of control by the international community and representatives of Kosovo.

The case of Kosovo would accord in general with the opinion of theoreticians that formal and actual independence should be bilateral.[72] If we were to support the dominant view according to constitutionalists and declarationists that the formation of states is a matter of fact and not of law.[73] Then the matter of recognition of Kosovo is a subsequent act which must happen after the matter of fact is already fully clear, and that by means of the direct aid of the international community.

But recognition of independence should not be ignored, because the declaration of independence is an act which calls for recognition and in most cases recognition guarantees a universal scale. Thus, legal ethnicity is a state but without legal effect and thus is not a state in the context of international law which is an indispensable condition for the normal functioning of a state at a time of interdependence and globalism.[74]

If we analyse the demands for meeting the criteria on the basis of efficiency, the traditional criteria and the fulfillment of legal criteria and modern ones, we can say that Kosovo fulfils these criteria as a whole.

In the postmodern era certain cases have been noticed of the non-recognition of certain requirements for statehood as against full territorial efficiency on the basis of creating this efficiency and its creation on an illegal basis. This is also the case with Kosovo, which is in a way a precedent for international theory and practice, or to put it more precisely, a lack of respect for the tradition of recognition of states and of international law itself.

In the time of dissolution of former Yugoslavia, and in particular the fall of communism, one of the international community’s conditions for recognition of new states has been respect for the rights of minorities. The rights of minorities in modern times are seen as norma jus cogens. This has not occurred in the time of recognition of the former FRY in 1996, but in actual fact it is happening in Kosovo. If legal acts in Kosovo are analysed it may be observed that in general, including positive discrimination, minorities are recognised with all their rights, often as those of the majority, including language, representation, culture, schooling etc. This has also happened in the laws approved by the organs of Kosovo, but also due to the demands of the international community where the PSSP holds the exclusive right to the rights of minorities.[75] At the same time, it is worth stressing that in the Constitutional Framework many international conventions have also been incorporated, including that on minority rights.

Recognition of the right of self-determination is a lawful connection to the right to statehood. Political self-determination in all situations is a sine qua non for the effective exercise of power, defence, development and enjoyment of economic, social and cultural self-determination.[76] Recognition of the right to self-determination compensates for the lack of full efficiency and affects statehood in international law. This is not only a legitimate principle for statehood but may also be considered a modern criterion for statehood.

The recognition of states, in this case of Kosovo as an independent sovereign state, apart from having a declarative character, also has at the same time a functional role. First, the external right to self-determination has been made a condition and principle of legitimacy for a state and its creation according to contemporary international law, and secondly, the internal right to self-determination obliges states to maintain access and a non-discriminatory government, and thus has an effect on political structures. Thus recognition of the right to self-determination of the citizens of Kosovo would help Kosovo to have the legitimacy of a state and to function as an equal subject in the international community and would provide stimulation for an internal right to self-determination for equal and democratic states which would bear this subjectivity in equal measure in the modern world.

VII. Conclusion

Kosovo has a central position in the Balkan Peninsula. Although a small territory, Kosovo’s geographical position has played an important geopolitical and geostrategic role. Kosovo has a homogeneous ethnic composition. The majority of the population is Albanian, over 90%, the others Serbs, Turks, Montenegrins, Roma etc. History between the Albanians and Serbs is the history of ethnic conflicts. At the time of the dissolution of former Yugoslavia Kosovo attempted to seize the moment to achieve its historic aspiration for freedom, self-determination and independence.

Kosovo, during the time of the Cold War, was under a communist state. According to this, even the will of the people of Kosovo for self-determination was limited by communist standards. For a long time Kosovo was unable to achieve the right to self-determination in the absence of the strength needed for effective control of her own borders.

The long-term and stable solution of the Kosovo question cannot be linked only to its limitation as an “ocean of peace”, but in its intertwining with justice. Peace has no meaning without justice, and such a justice is imposed and fragile.

The Albanian people of Kosovo now seeks only the right to take hold of their own country which belongs to them in the Balkans and to live free and in harmony with their neighbours.[77] It is essential that this matter also penetrate the consciousness of the Serbian people. As many authors stress, the separation of Kosovo from Serbia would also help the prospering and democratisation of Serbia herself. When the Serbian people should think critically and humanely about Kosovo and the myth concerning it, not only the people of Kosovo but also the people of Serbia would be the beneficiaries.[78]

As regards the right of the Albanian people of Kosovo for self-determination in relation to surrounding states and stability in the region, this legal opinion is relevant: “Qui iure suo utitur nemin facit iniuram” (Whoever makes use of their own right does nobody injustice).

With the ending of the Cold War two conditions were satisfied; the role of the Soviet Union in Central and Eastern Europe was markedly reduced, and the role of the FR of Germany markedly increased, not perhaps in changing things but particularly in safeguarding the status quo. For the first time both countries were placed in a position where they did not see the solution of problems by military force outside their national borders. These changes are very important and have an influence on other fundamental changes but also in general on international relations in Europe, which ties in with the substantial economic integration of Western Europe and in all other spheres, while simultaneously increasing their close association with the liberal economies in the East. These two other changes have made difficult if not impossible hegemonistic leaderships over other peoples and countries, i.e. avoiding almost completely the ethnic conflicts and antagonisms among the great European powers but also others.

This is what analysis shows, and a new perception is that an era has come to Europe which is qualitatively different from the known past, which implies that past international politics is not useful for the present or for envisaging solutions in the future. I said this so that we should understand that the future is different in both academic and political analyses, in every case, including that of Kosovo.

Naturally, the internal structure of individual states itself plays an important part; because the question whether there shall be war or peace in conflicts of interest it is important whether the states are dictatorial or democratic and less important whether they have or do not have military strength.

The verification and monitoring by international forces of peace and security in the region and especially in Kosovo and the FYR of Macedonia, is essential until a stable situation is created in these countries and they create stable mechanisms for defence on the one hand, and on the other, until hegemonistic policies of countries which create crisis, such as Serbia, are removed from the scene, along with the myth and feeling of hegemony and these countries are democratised to the point where they are able to recognise the rights of others also, not only their own, which is nothing but nationalism.

Membership of the EU is a solution for the removal of conflicts, mutual actions for collective economic and political good, as an initial experience in the neighbouring states of western Europe after the Second World War. This increases confidence and as a result also has greater security.

Acceptance of the European Convention on Human Rights as a precondition for membership of the EU, and of other bilateral and multilateral acts, are a condition which would relax relations, and their respecting by national institutions would not only be their conviction but also a kind of imposition and reasoning faced with extremist forces that it must be respected as a consequence of international acts, i.e. a burden of responsibility in international institutions and a contribution to the formation of a more appropriate opinion to make this part of national consciousness and institutions.

The independence of Kosovo, just like that of Albania which in more than 90 years has had no influence in destabilising the region, would be the same but maybe it would relax the relations of Albanians with others, having this as satisfaction, and the thought of the compromise that their situation is in their favour. Often the positions and actions of the “mother” state have been closer to compromise than the peoples themselves, who have demanded and fought for their rights.

Balance in the region would be created by this, especially between Albanians and Serbs, but also Croats, who are in a way a factor in maintaining or destroying peace in the region. Experiences hitherto have shown that only balanced forces have created peace by means of the sense of equality and deterrence between them, but also of the possibility of counterstrike if one of the balanced forces wishes to disturb the peace. Thus, for example, the FYROM would be protected from Serbia or Bosnia from the Albanians and so on, i.e. symmetries would be created in the region, and the greater would respect the others by the deterrence of the other party to the balance.

Keeping the peace is different from making it. In the short term the solution to conflicts and keeping of peace will be effective only if they are supported by economic aid. Naturally, the ethnic conflicts in Eastern Europe have deep roots but the economic aspect will at least relax them. This would be a support for stable peace but also for the protection and development of the liberal democracies of the former Warsaw Pact bloc. Aid for poor states will be simultaneously a constriction of the military foreign policy of large states.

With the aim of creating a balance of opinions in this ethnic and territorial conflict between the two peoples, the Serbian and Albanian, I shall paraphrase two academics from the two peoples.

In the context of the realisation of the right to self-determination alongside regional stability I shall mention the words of the Serbian academic, Dobrica Cosic, who is also regarded as the father of the Serbian nation, where he says, “Self-determination is the first principle of any kind of democratic solution… while this is not respected, we will have long war and unheard-of tragedies.”[79] I would like to believe that when he said this he was not thinking in an undemocratic way only about his own people, but as a universal principle.

I stress the astute observation of the late academic Gazmend Zajmi, in relation to the claim that Kosovar independence would be a destabilizing factor, when he said: “… under cover of safeguarding regional stability, full independence of Kosovo may be postponed for a while, but it would be hard for the Kosovo question to be eliminated in this regard, as an essentially democratic and balanced solution in the Balkans. Its prolongation implies the continuation of conflict and inter-ethnic tensions in the Balkans”.[80]

Recognition of the right to self-determination is a legitimate connection with the right to statehood. Political self-determination in all situations is a sine qua non for effective exercise of power, defence, development and enjoyment of economic, social and cultural development.[81] Recognition of the right to self-determination compensates for the lack of full efficiency and influences statehood in international law. This is not only a legitimate principle for statehood but may also be considered as a modern criterion for statehood.

Recognition of the right to self-determination of the citizens of Kosovo would help Kosovo to have the legitimacy of a state and to function as an equal subject in the international community and would provide stimulation for an internal right of self-determination for an equal and democratic state which would bear this subject status in equal measure in the modern world.

Great legal, political, strategic and security arguments are in favour of self-determination for the Albanians and Kosovo. The right to self-determination of Albanians and Kosovo is in general accord with the free will of the majority people and in agreement with democratic principles, to the advantage of peace and stability in the region. This right has a particular source in the moral right of the people of Kosovo and in its loss by the Serbian regime after all that violence unleashed by the occupying Serbian regime for years, which grew especially savage in the final years.

Self-determination for the people of Kosovo would be the fulfillment of a natural, historic, demographic, legal, democratic right, and above all, satisfaction for the centuries-long sufferings of this country and this people and the building of new prospects for them and the whole region.

Thank you for your attention.

P.S. A paper read at the international scientific symposium organised by the Law Faculty of the University of Illinois, Chicago-Kent, University of Prishtina and Law Faculty of the University of Graci, Austria on the theme: “The Final Status of Kosovo: The Knot that needs untying”, held on 16-17 April 2004 in Chicago, USA.

[3] Aleksander Stipcevic, “The Question of Illyrian-Albanian Continuity and its Topicality Today”. ”Kosova” No. 4. Tirana. 1994. pp. 23-24.

[4] Ratko Katicic, “Ancient Languages of the Balkans”. The Hague-Paris, 1976. p. 184.

[5] George Castellan, History of the Balkans. London 1997. p. 399

[6] Vladimir Dedijer, Jugoslavia od Versaja do Pariza, Belgrade 1947. p. 24.

[7] Z. Gruda, “E drejta per vetevendosje e popujve”. [The right of peoples to self-determination] “E drejta”. [Justice] Year XXII No. 2. April-June 1996. Prishtina p. 34.

[11] Darko Sekulic, “The creation and dissolution of the multinational state: the case of Yugoslavia.” “Nations and Nationalism”. Vol. 3 Part 2 July 1997 p. 169.

[12] Lord Owen, “The break-up of Yugoslavia: its international aspects.” International Peacekeeping. Vol. 3 No. 2-3 February-May 1996. p. 34.

[13] Sabrina P. Ramet, “Nationalism and Federalism in Yugoslavia, 1962-1991.” p. 34….

[14] Vesna Godina, “The outbreak of nationalism in former Yugoslavia. A historical problem of supranational identity.” “Nations and Nationalism”. Vol. 4. Part 3 July 1998 pp. 411-412.

[17] Snezana Trifunovska, “Preventive Peacekeeping and the case of FYROM.” “International Peacekeeping” Vol. 4 No. 1-2. January-December 1997. p. 2.

[18] Gazmend Zajmi, Works Vol. 1. AASHK, Prishtina. 1997. p. 121

[19] Mark Almond, Europe’s backyard war. London. p. 9

[21] Jansuz Bugajski, “Nations in Turmoil. Conflict and Cooperation in Eastern Europe.” © Westview Press inc. 1993 pp. 125-136

[23] David E. Goodlett, “History and Nationality among former Yugoslavs.” “European Security.” Vol. 6 No. 2 summer 1997 p. 53.

[25] Tihomir Loza, “Kosovo Albanians: Closing the Ranks.” “Transitions” Vol. 5 No. 5 May 1998 p. 23.

[29] Warren Zimmerman, “The Demons of Kosova/o.” “National interests.” No. 52 spring 1998 p. 3.

[31] Alan Fogelquist, “Handbook of Facts on the Break-up of Yugoslavia; International Policy and the War in Bosnia-Herzegovina”. © by A. F. 1993. pp. 12-13.

[32] Resolution no. 777 of the UN Security Council passed at meeting 3193 of the UN Security Council on 19 September 1992. Published on the internet: www.un.doc.

[33] IMF Press release No. 92/92 December 23, 1992. Quoted in Malcolm N. Shaw, “State succession Revisited.” The Finnish yearbook of International Law”. Vol. V. 1994. p. 53.

[34] S. Trifunovska, “Yugoslavia through documents” … p. 419

[35] Tim Judah, “The Serbs and their myth.” “Transitions” Vol. 4. No. 2-3. Summer 1998. p. 84

[38] Michael Freeman, “National Self-determination, Peace and Human rights.” “Peace review” Vol. 10 No. 2 June 1998. p. 162.

[39] The full text on the Opinion of the Badinter Commission may be found at S. Trifunovska, “Yugoslavia through documents” … pp. 415-418, 474-481, 634-640.

[40] Cassese Antonio, “Self-determination of peoples and the recent break-up of the USSR and Yugoslavia.” © by Kluwer Academic Publishers. 1994. pp. 134-141.

[41] S. Trifunovska, “Yug. through doc.” p. 415

[42] Ibler Vladimir, “Pravo naroda na samoodredjenje i zloupotreba tog prava.” “Politicka misao”. Vol. XXIX No. 2/92 Zagreb pp. 53-55.

[43] See the Opinions of the Badinter Commission, op. cit. p. 422

[45] See the Preamble to the 1974 Constitution of the FSRY and Articles 1 and 5.

[46] The texts of these agreements and accompanying acts were published in the Official Newspaper of Kosovo, No. 12/72, 3/77 and 34/78.

[47] See the Constitutional Declaration, published in “Rilindje” [Renaissance] 3 July 1990. p. 1

[48] See the Constitution of the Republic of Kosovo 7 September 1990, published in the newspaper “Dielli” [The Sun], Zagreb, 1990.

[49] See the Results of the Referendum of 26-30 September 1991 published in the daily newspaper “Bujku” [The Farmer], 1 October 1991. Prishtina, p. 1-3.

[50] Colin Warbrick, “Current developments. Public International Law. Recognition of the States.” “International and Comparative Law Quarterly”. Vol. 41 Part 2 April 1992 p. 480.

[51] Marc Weller, “The international response to the dissolution of the SFR of Yugoslavia.” “American Journal of International Law.” Vol. 86 No. 3 July 1992. pp. 569-607.

[52] See the Constitution of the FSRY of 1974 and the Constitution of the ASR of Kosovo of 1974

[53] Zejnullah Gruda, “The right of peoples to self-determination.” E Drejta [Justice] Year XXII No. 2 April-June 1996 Prishtina p. 8.

[54] Warren Zimmerman, “The demons of Kosova.” p. 5.

[55] Benjamin Neuberger, “National and self-determination: Dilemmas of a concept”, “Nations and Nationalism.” Vol. 1 Part 3 November 1995. p. 313

[56] Jansuz Bugajski, “Kosova between war and independence: Implications for international security.” Tirana, February 1999 p. 5-6.

[57] Jorgo Samakos, “Athens discovers the secrets of the Kosovo war.” Newspaper “Fakti” [The Fact], 24 December 1998. No. 219. Skopje p. 10.

[58] Lubivoje Acimovic, “Princip samoopredeljenja naroda i problem Kosova.” Belgrade 1998. p. 6.

[60] Edith Durham, “The Cry of the Balkans.” Tirana, 1991. p. 426

[61] Jansuz Bugajski, “Kosova between war and independence” … p. 5, and Noel Malcolm, op. cit. p. 356

[63] Cited by Z. Gruda, “The right of peoples to self-determination,” p. 18.

[66] Oppenheim, “International law,” 1955 p. 118

[67] See the Constitution of the FSRY, Article [number not stated]

[68] M. N. Shaw, “Territory in International Law,” NYIL Vol. 13 1982 p. 61

[72] Crawford, “Creation of the State” pp. 65-71

[73] Oppenheim op. cit. p. 544 Chen, “Recognition,” pp. 38 and 60 etc.

[74] Dugard, “Recognition,” p. 147

[75] See Article 8 of the Constitutional Framework on temporary self-determination in Kosovo. Among other things it is emphasised that all the laws much respect the rights of minorities.

[76] J. Klabbers and R. Lefeber, “Africa: Lost Between Uti Posidetis and Self-Determination” p. 37-42.

[77] Edith Durham, “The Cry of the Balkans”. Tirana, 1991. p. 426

[78] Jansuz Bugajski, “Kosova between war and independence”… p. 5 and Noel Malcolm, op. cit. p. 356

[79] Cited by Z. Gruda, “The right of peoples to self-determination,” p. 18.

[81] J. Klabbers and R. Lefeber, “Africa: Lost Between Uti Posidetis and Self-Determination” pp. 37-42.