Kosovo

1. COLLEGIUM CIVITAS
Department: International Relations
Student name: Michael Stapleton
Student number: 3385
KOSOVO: CONSTRUCTIVE SECESSION OR DESERVED
SOVEREIGNTY?
BA thesis
Written under the supervision of
dr Sergiusz Pukas
Warsaw, 2011

2. TABLE OF CONTENTS
ABBREVIATIONS .................................................................................................................... 3
INTRODUCTION ...................................................................................................................... 4
1. CONSTRUCTIVE SECESSION ........................................................................................... 8
1.1 Legality of a Unilateral Declaration .......................................................................... 10
2. DESERVED SOVEREIGNTY ............................................................................................ 14
2.1 Human Rights Abuses .................................................................................................... 15
2.2 Contravention of Autonomy ........................................................................................... 16
3. REFORMATIVE SECESSION............................................................................................ 19
3.1 First sphere – the Republic of Kosovo ........................................................................... 20
3.2 Second sphere – Kosovo as a regional affiliate of the Republic of Serbia .................... 20
3.3 Third sphere – Institutions administered by both, the Republic of Kosovo and
the Republic of Serbia .................................................................................................... 20
CONCLUSION ........................................................................................................................ 22
ADDENDUM........................................................................................................................... 25
REFERENCES ......................................................................................................................... 27
LIST OF ILLUSTRATIONS .................................................................................................... 29
2

3. ABBREVIATIONS
CSCE Commission on Security and Cooperation in Europe
ECC European Economic Community
ESDP European Security and Defence Policy
EU European Union
EULEX European Rule of Law Commission in Kosovo
FRY Federal Republic of Yugoslavia
FPRY Federal People's Republic of Yugoslavia
ICJ International Court of Justice
ICTY International Court for the Former Yugoslavia
NATO North Atlantic Treaty Organization
OSCE Organization for Security and Co-operation in Europe
PILPG Public International Law and Policy Group
SFRY Socialist Federal Republic of Yugoslavia
UDHR Universal Declaration of Human Rights
UN United Nations
UNHRC United Nations Human Rights Council
UNMIK United Nations Interim Administration Mission in Kosovo
USA United States of America
UNSC United Nations Security Council
UNSCR 1244 United Nations Security Council Resolution 1244
USSR Union of Soviet Socialist Republics
3

4. INTRODUCTION
This thesis will focus on two approaches towards the recognition of Kosovo's
independence, that of constructive secession and deserved sovereignty. The thesis will
commence with the examination of remedial secession and how it is applicable in the case
of Kosovo from 1989 through to 1999. It will be argued that the application of remedial
secession was an incorrect instrument to use, both from the legal and political standpoint.
Deserved sovereignty currently lacks a precise definition, but is understood to entail
a process of a sovereign or sovereigns who maintain authority over a region for the purpose
of stability, relinquishing authority to a recognized entity while being supervised by
an international body or bodies. In order for deserved sovereignty to be evident three criteria
must be present. The first being shared sovereignty where a state, sub-state entity
or an international organization, exercise authority over a defined region for a predetermined
time frame. Second - institution building, where the entity which will ultimately govern
the defined territory (with the assistance of an international body) implements public
institutions or recreates those already present. The final stage is the acceptance of the state
as a sovereign by the international community, which is determined by the relationship
between the state and the sub-state.
For cases with a particularly delicate situation such as Kosovo three additional factors are
necessary: firstly, phased sovereignty where the sub-state assumes authority over the
functioning of the defined region over a predetermined time frame before an earned sovereign
status is assumed. Secondly, conditional sovereignty where criteria have to be met in stages
forming a process towards sovereign status. Thirdly, constrained sovereignty where
an international body limits the authority of the sovereign through continued military presence
or administrative functions whereby the sovereign is unable to undertake territorial
association with other state actors.
In the contemporary political sphere the solution to a sovereign conflict has been
approached from either deserved sovereignty, which has been earned through co-operation
with an external entity, or the right to self-determination. It can be argued that deserved
sovereignty is a regressive approach as it creates state and sub-state entities and the criteria
to attain sovereign status is out of reach for certain applicants. Let then be viewed as a process
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5. whereby a sub state entity is formed for the purpose of alleviating conflict and guided towards
sovereign status with the assistance of the international community so as not to provoke the
state from which secession is sought.
For this process to be effective the concerns and interests of both - the state and sub-state -
must be taken into account. This adds complexity and fragility to the process culminating
in its uniqueness and requirements needed to achieve a balance. With reference to the case
of Kosovo and the purpose of this thesis, the author suggests an alternative approach, that
of constructive sovereignty.
Constructive sovereignty will be defined as the populace being granted sovereignty
by requesting constructive secession and therefore initiating the above mentioned process
involving the initial three factors of shared sovereignty, institution building and sovereign
recognition. The proposition then is a prototype structure which can serve to avert additional
conflict created as a result of a sub-state entity being granted sovereign status such as the case
of the Republic of Kosovo.
The unilateral declaration of independence by Kosovo on the 17 February 2008 was
greeted with an indifferent response by the international community. To date seventy two
United Nations (UN) members have recognized the Republic of Kosovo as a sovereign entity,
twenty two of those being European Union (EU) member states and twenty four being North
Atlantic Treaty Organization (NATO) members. Notable abstainers of recognition are China
and Russia who supported Serbia in the Accordance with the International Law of the
Unilateral Declaration of Independence in Respect of Kosovo, which was an advisory opinion
sought through the International Court of Justice (ICJ) from the UN General Assembly with
regards to the 2008 unilateral declaration of independence by Kosovo. The advisory opinion
was delivered on the 22 July 2010 and declared that the unilateral declaration of independence
by Kosovo on the 17 February 2008 did not violate international law, the Constitutional
framework or United Nations Security Council Resolution (UNSCR) 1244. The ICJ provided
its advisory opinion only towards the specific nature of the question brought forward. It did
not touch on the validity of sovereign recognition by the UN members at the time and the
legal implications thereof; nor did it analyze the justifications for the recognition by these
members.
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6. Those state actors who recognize the Republic of Kosovo do so under a number of criteria:
human rights crimes which were committed under Slobodan Milošević, ten years
of international administration, Kosovo's continued respect towards minority groups and the
acceptance of conditional sovereignty. The underlying tone rests upon the notion that Kosovo
as an independent state will bring stability to the region. More importantly the case
of Kosovo is unique and is not a benchmark by which non-recognized state entities should
seek recognition. Furthermore, international law does not grant an entity to seek recognition
unless it is within the context of a protectorate working under the pretext of colonialism.
Therefore the unilateral declaration is an ineffective instrument and the case of Kosovo cannot
be taken as a precedent for future cases.
The legality of a secessionist state is neither legal nor illegal with regards to international
law but can be placed within the framework of legality through the regulation of the
international community. The implications of granting an entity sovereignty has great impacts
upon the legal and political arena both domestically and globally. The international
implications are the acceptance into international organizations and involvement in global
security, economic and political spheres; for Kosovo such participation and acceptance are
vital for the political stabilization of the territory. Additionally, the acceptance of borders and
associated disputes will further stability and integration. An article in the Sunday Times
(Philip, 2008) addresses the issue of recognition by stating that the recognition of Kosovo
is equal to that of the unilateral declaration and is paramount to the future functioning
of the state.
Taking into account both the legal and political implications of recognition and the
disputes which have followed Kosovo's Unilateral Declaration of Independence, this thesis
will analyze the basis of recognition that has been advocated by states which recognize
the Republic of Kosovo.
This analysis will be conducted upon two theoretical approaches that will propose
a structure for managing the process of recognition with regards to disputed territorial entities.
The first of which will be constructive secession, where the suppression of human rights upon
a group by the governing authorities is calibrated against possible solutions. The solutions
range from the lowest integer, being the protection of rights on an individual basis, moving
further up to the protection of a group and the highest level being that of secession as the only
6

7. justifiable solution. Whereas constructive secession is linked to international intervention,
the second approach of deserved sovereignty focuses on institution building. This
is performed through the international community who initially manage the conflicted
territory in order to build institutions which will ultimately be operated by the sub-state entity
seeking secession.
This thesis will investigate how similar these two theoretical approaches are to the
practical international response which the case of Kosovo has seen, with particular attention
being made to the 2008 Unilateral Declaration of Independence. As a result of the analysis,
a theory of reformative secession will be proposed. This is an amalgamation of the two
aforementioned theories. It will serve the purpose of more precisely addressing the situation
where an oppressed people seek sovereign status through international mechanisms taking
into account international law and politics.
The following section of the thesis will further elaborate upon the theory of constructive
secession and its application to the Kosovo situation. Furthermore, the legality of unilateral
declaration of independence by Kosovo on the 17 February 2008 will be addressed. From this,
seven points, which may give a suppressed people the right to a unilateral declaration, will
be elucidated.
7

8. 1. CONSTRUCTIVE SECESSION
The grounding principles for constructive secession are based within the field
of international law and, specifically, that of normative theory - theoretical approach which
addresses the remedial rights of a group who wish to secede. It can only be brought into force
where it has been deemed that the afflicted group will no longer suffer injustice as a result
of secession. The right of the oppressed group is in direct proportion to the number of
afflicted persons within a defined region of a state.
Therefore, the use of secession is not to inflict negative ramifications towards the
governing power but to separate the two entities - state and sub-state - in order to emancipate
the oppressed group, resolve conflict and stabilize the region; additionally, with
the involvement of the international community, to circumvent the right of revolution which
is a direct result of continual injustices towards a specific group.
In the case of Kosovo, where the disproportion of belligerents favoured the Federal
Republic of Yugoslavia (FRY) excluding NATO forces, secession is seen as a favourable
solution to that of revolution, when a tyrannical oppressor limits basic human rights.
It is upon the issue of human rights that newly declared sovereigns are recognized, as their
defined territory is the direct result of ethnic cleansing and other crimes against humanity.
This is in direct violation of jus cogens1 and the UN Charter which states:
All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.
(Charter of the United Nations and Statute of the International Court of Justice, 1985)
The collective stance, taken by the UN members who do not recognize a new state entity
which has suppressed human rights in order to further its status, serves as a veto. If this is then
addressed from the opposing view, the recognition of a sub-state entity can be based on the
alleviation of the suppressed people, which would result in the group seceding from
the tyrannical state; herein lays the bases for constructive secession.
1
Jus cogens refers to a norm which is widely accepted within the international community and from which no
actor may derogate.
8

9. The right to self-determination is inherent in international law and provides an entity with
the ability to embark on a process of secession. The Declaration on principles
of International Law concerning friendly relations and co-operation among states
in accordance with the Charter of the United Nations, adopted during the twenty fifth session
of the General Assembly's on the 24 October 1970, contains a principle with direct reference
to the subject of self-determination. The Principle of Equal Rights and Self-Determination
of Peoples reads as thus:
By virtue of the principle of equal rights and self-determination of peoples enshrined
in the Charter of the United Nations, all peoples have the right freely to determine,
without external interference, their political status and to pursue their economic, social
and cultural development, and every state has the duty to respect this right
in accordance with the provisions of the Charter.
(Resolution No. 2625)
Reading this above text from the opposing side sheds light to possible action that can
be taken by an oppressed people within a legal framework. A state which does not abide
by the Charter and therefore violates the principle of equal rights and does not provide
the limited peoples with an option of self-determination invokes the grounds by which
it can be dismembered. This dismemberment can be invoked with regard to the territorial
integrity and or political disunity. Territorial integrity is a pillar which supports the stability of
global peace and prosperity and is inherent within the UN Charter. The notion centres on the
position of non-interference within the domestic affairs of a sovereign by other state actors.
Additionally, the use of force to suppress a territory and or retard the furtherance of a sub-
state entity violates the very principles for which the “free world” stands; however, it must
be kept in mind that declarations which are political in nature do not oppose this principle.
Furthermore, it is only state actors which can be brought into question under international law.
Ergo the notion of territorial integrity is only relevant between state actors and is inapplicable
with regards to domestic issues within a state.
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10. 1.1 Legality of a Unilateral Declaration
The dissolution of the USSR and the end of the Cold War saw concepts of constructive
secession gaining prominence within the international community. Territories which sought to
further their independence looked to the framework of international law in order to legitimize
their secessionist movement; as movements have been met with opposition so complexities
have arisen.
Legal positivism asserts that secession is a matter within the realm of politics and therefore
is unrelated to any legal jurisdiction. Secession in itself directly challenges the theories
of International Relations, most notably the realist school of thought, where international law
only runs in accordance with the power politics of the global arena. Within this thought
paradigm, a secessionist movement will only achieve its desired result if its goal is aligned
with powerful state actors.
Positivists and realists agree that a unilateral declaration does not fall within the rights and
norms of international law; however, if all other options have been exhausted the decision
may stand. The inquiry of the General Assembly with reference to the unilateral declaration
of Kosovo is the first case which the ICJ has had to question the legality of secession with
regards to a unilateral declaration. Under Article 65 of the Statute of the ICJ the Court
is vested with the power to grant advisory opinions to the UN; furthermore, under Article 96
of the UN Charter the latter is authorized to request such an opinion. Although the Court
stated that the advisory opinion in question was inherently political in nature, it was not
outside the parameters of its jurisdiction.
The opinions of the ICJ are not directed towards states. Although, they do indirectly
reference them, it only concerns itself with the Security Council, General Assembly and any
other organ of the UN who are granted authorization under Article 96. Therefore, the motives
of state actors, who vote for a resolution requesting an advisory opinion, are irrelevant
towards the outcome. Additionally, the Court has rejected inferences where no indication
as to the use of the decision and to its legal effect has been given by the General Assembly
therefore granting the Court the power to accept or reject such opinions.
10

11. The Court was requested to provide an opinion on whether the declaration
of independence was within the framework of international law; it did not attempt to question
the consequences of such an opinion. Ergo, it was not concerned with the status of Kosovo as
a sovereign state, the result of its opinion or the legal implications regarding the recognition
of the Republic of Kosovo by other state actors. The advisory opinion requested by the
General Assembly did not address the issue of a unilateral declaration leading to statehood nor
did it specifically mention the right of an entity within a state to unilaterally secede.
The Court pointed out that the United Nations Mission in Kosovo (UNMIK) regulation
2001/9 enacted the Constitutional Framework, which was executed by Lamberto Zanier the
United Nations Special Representative for Kosovo. The authorization for such an action was
granted through UNSCR 1244, the basis of which is derived from the UN Charter.
Theoretically speaking, through the Constitutional Framework Kosovo acquired
an international legal character. The Constitutional Framework is a body of law in use
by external institutions to administer Kosovo. The Assembly of Kosovo was set-up and
granted legality through the Constitutional Framework. The institution can approve legislation
only within the parameters set and it is subservient solely to the United Nations Special
Representative. Therefore, through the power granted by UNSCR 1244 and the Constitutional
Framework, the United Nations Special Representative can supervise the institutions set-up
through UNMIK. At no time before the declaration of independence by the Assembly
of Kosovo on 17 February 2008 had UNSCR 1244 or the Constitutional Framework been
abrogated; furthermore, there is no clause referring to their termination. Additionally, they are
inherent within international law and comprise part of the advisory opinion of the ICJ.
To expand on the above-mentioned legal instruments, used in the civil and political
administration of Kosovo, Resolution 1244 was the basis upon which the international civil
and political authority was established. It must be kept in mind that it is an exceptional legal
instrument created in response to the Kosovo Conflict of 1999. The formation of an interim
international administration was to circumvent humanitarian issues for the purpose of creating
a stable environment enabling the establishment of law and order.
In order to ensure stability, local institutions would be set-up under the supervision
of the international administer, creating the self-government of Kosovo and excluding Serbia
from exercising authority over the territory in question. From this, it was concluded by the ICJ
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12. that UNSCR 1244 was exceptional in nature and usurped Serbian legal jurisdiction on
an interim basis. Regarding the legality of a unilateral declaration under UNSCR 1244, there
is no clear interpretation that denies an entity the right to unilaterally secede. Although the
declaration adopted on the 17 February 2008 was through representatives of the people
of Kosovo, it did not act within the Constitutional Framework of the Provisional Institutions
of Self-Government. Additionally, it did not hinder international influence within the
administrative operations of Kosovo as only the Security Council is authorized to do so.
One of two options is applicable for the permanent settlement of Kosovo. Firstly, all parties
concerned must come to a consensus (most notably that of Serbia). The other option is for the
Contact Group 2 to follow the Guiding Principles 3 , which would authorize the Security
Council to pass a resolution affirming Kosovo’s final status. The language used in UNSCR
1244 is ambiguous in nature and, as mentioned before, concerns itself with the interim
administration of Kosovo and not its final status; therefore, a unilateral declaration is not
a direction violation of the UNSCR 1244.
Constructive secession is not a right that can be acted upon; although, it does offer both
political and normative legality to an oppressed people. This further induces state actors
to support such a movement. A contemporary scholar, Allen Buchanan, advocates a notion
of restructuring international law, which should be centered on a Just Cause Theory4. Within
this paradigm, secession would only be just if it is remedial in nature, which can be identified
against three principles: firstly — basic human rights have been restricted on a large scale;
secondly — territory has been unjustly annexed; lastly — a state actor continuously violates
the autonomy of an interstate whose status has been defined through agreements by both
parties (Buchanan, 2007). Furthermore, with respect to the Principle of Last Resort, all forms
of negotiation or agreement must be exhausted.
The entity wishing to secede must attest to its representative nature, abide by the rule
of law and the Universal Declaration of Human Rights. Through the Principle of Right
Intentions, the action of unilateral declaration should be made in good faith to rectify
oppressive injustices. Additionally, the action must be proportional in nature and the cost
2
The Contact Group is comprised of the most influential countries who have interests within the Balkan
Peninsula. They are the United States, United Kingdom, France, Germany, Italy and Russia.
3
The Guiding Principles were submitted to the Security Council on 7 October 2005. They refer to ten principles
which must be adhered by all parties concerned regarding the final status of Kosovo in accordance with Security
Council Resolution 1244.
4
The Just Cause Theory advocates the secession based upon the oppression of a peoples.
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13. of secession must be in accordance with the desired outcome. Lastly, the action of secession
must be made with the intention of recognition by other state actors. In conclusion, the
following seven points are the tenets of constructive session and could be invoked to justify
the unilateral movement:
1. The restriction of human rights by a state upon an autonomous entity.5
2. A state actor contravenes an autonomous entity which it legally brought into being.
3. A state actor annexes a territory for which it has no legal grounds to do so.
4. The interference of external entities in order to stabilize the environment and bring
about an amicable agreement between both parties.
5. The aforementioned interference requires powerful entities to do so.
6. All forms of settlement must be exhausted by the primary parties involved.
7. Should the autonomous entity be granted final status, it must ensure to uphold
minority rights.
The following section of the thesis will address the approach of deserved sovereignty in the
case of Kosovo. This approach will be further expanded upon by discussing human rights
abuses and the contravention of autonomy.
5
Granted the autonomous entity has been ceded the afore mentioned status through an agreement with the state
actor who restricts human rights.
13

14. 2. DESERVED SOVEREIGNTY
The development of any notion regarding Kosovo's final status was first commissioned
by the Public International Law and Policy Group6 in conjunction with the International Crisis
Group7 in November of 1998. The position was taken in line with the remedial stance in that
the people of Kosovo would be granted an elevated state of sovereignty due to restricted
human rights under Serbian authority. A final status would only be seen in the event of a fully
democratic self-government respecting human rights and maintaining security within the
region. Under this doctrine, an international presence would be observed over a three to five
year period. During this transition stage, Kosovo would assume greater authority over its
functions from Serbia so long as it respects the rights of minorities and agrees to border
delineations. Initially, this approach was termed supervisory statehood but as the direction
tends towards final status, this thesis will term it deserved sovereignty.
Deserved sovereignty is comprised of three fundamental elements, the first being shared
sovereignty. This element is a method whereby there is a co-existence between the entity
wishing to secede and the international community. The basis of this shared approach
is to alleviate and contain the restriction of human rights by the offensive state, set-up
institutions in conjunction with the oppressed entity in order to establish rule of law and focus
on short term objectives. The second element focuses on the setting up of these institutions,
centered on both political and economic infrastructure which will further self-government and
final status recognition. The third element is a culmination of the aforementioned elements
regarding the issue of final status. If the previous two elements have been fulfilled and operate
effectively within their right, then final status can be sought through the international
community.
Paul Williams, co-founder of PILPG expounds three additional elements. The first
of which is phased sovereignty: further elaborating upon the time frame in which the
international community hands over territorial and administrative authority to the sub state
entity through the establishment of human rights and institution construction. The second
element - conditional sovereignty - is identifiable through criteria which must be met in order
to be eligible for final status recognition. These criteria would entail the guarantee of minority
6
Public International Law and Policy Group is a non-profit organization which offers its legal services to
developing and sub-state entities who are subject to conflict.
7
The International Crisis Group is a non-governmental organization which seeks to prevent and resolve
conflictual issues.
14

15. rights, solidification of democratic institutions, rule of law and attempts to further regional
stability.
The third element is a form of constrained sovereignty — the sub state entity has
restrictions with regards to interactions with other state actors. An international presence
is still prevalent within the territorial borders; this is in place so to as avoid any form
of retaliation. It has been argued by Williams that all elements should be implemented through
consent of all parties involved but in exceptional cases forced implementation is necessary
(Max Planck UNYB, 2005).
When referring to deserved sovereignty, two doctrines are essential for the final status
of Kosovo that of UNSCR 1244 and the Rambouillet Agreement8 signed on the 18 March
1999. The period between 1999 and the unilateral declaration of 2008 saw the establishment
of democratic institutions and the development of self governance for the solidification of
final status. Due to failed UN initiatives, Kosovo sought its own action on the 17 February
2008. The following paragraphs will address the aforementioned doctrines9 and how they are
applicable with regard to a determination of final status.
2.1 Human Rights Abuses
The difference between constructive secession and a deserved sovereignty lies within the
restriction of human rights and the approaches taken towards it, whereas constructive
secession, being remedial in nature, views the suppression of human rights as a catalyst. The
deserved sovereignty approach works through a conflict resolution medium and focuses less
on casual factors. Laws enacted upon the Albanians in 1989 forbid them from any
unsanctioned sale of private property and the use of Albanian in the educational system — this
in itself establishes a violation of human rights (Crawford, 2003).
Between 1992 and 1998 the UN General Assembly adopted twelve resolutions regarding
the human rights abuses inflicted upon Kosovar-Albanians. The resolutions were a result
8
The Rambouillet Agreement was a peace agreement drafted by NATO in order to solve conflictual issues
between the Federal Republic of Yugoslavia and a delegation who represented the ethnic Albanian majority
present within Kosovo.
9
Seven points regarding the right to unilateral secession noted on page 11.
15

16. of extensive work done by the Commission and Security on Cooperation in Europe (CSCE10)
and the Special Rapporteur on behalf of the UN. The CSCE additionally reported
on economic and administrative structures which ran parallel to those operated by the FRY.
A statement issued by the European Community in 1992 called for Kosovo to retain its
autonomous state within the FRY. At this point, it was internationally known that Kosovo had
no autonomous rights and human suffering was prevalent, yet no action was taken outside
of the human rights issue.
It can be deduced that remedial issues were not taken into consideration at this time.
However, with the advent of the Kosovo War the matter transformed from a human rights
issue into a humanitarian crisis. As Serbian military and paramilitary forces began to use
indiscriminate and disproportionate use of force against civilians, severe human rights
violations and crimes against humanity were committed. At this point, the international
community reacted — the UN Security Council called for increased autonomy and
consequential self-determination in 1998.
The Rambouillet Accords were drafted by NATO on the 23 February 1998 with
the intention of granting powers of self-government and the recognition of Kosovo's territorial
integrity by the FRY for a period of three years, whereby a referendum would be held
regarding its further status. The FRY and Serbia refused to sign the accord which justified the
actions of NATO when Operation Allied Force was initiated on 24 March 1999 (Vidmar,
2009). With regards to deserved sovereignty, the Rambouillet Accords was unsuccessful
as a peace agreement, but, due to decreased FRY sovereignty over the territory, it did aid
Kosovo in increased sovereignty.
2.2 Contravention of Autonomy
An additional element, which is remedial in nature and invokes legal implications, is the
suppression of one's right to self-determination. As the right to self-determination is itself jus
cogens, the refutation of internal self-determination can transform itself into an external self-
determination (Cassese, 1999). The notion of deserved sovereignty does not directly concern
itself with suppression of autonomous self-government or restriction of human rights; it does
though aim to resolve them.
10
The Commission and Security and Cooperation in Europe is an independent United States Government
Agency. The agency works closely with the Organization for Security and Cooperation in Europe (OSCE) and is
influential towards United States foreign policy.
16

17. In order for a sub state entity to obtain any legal grounds upon which to act, a normative
shift must be invoked. Thus, sovereignty must be defined as responsibility and not authority
over a territory with responsibility being governed by the UN Charter and the Universal
Declaration of Human Rights (UDHR) (Welsh, 2006). This then weakens the host states
legitimacy over the territory, in turn, transferring legitimacy to the sub state entity which,
as a result, has reasonable justification for deserved sovereignty. With reference to Kosovo,
the first constitution adopted on 31 January 1946 through the then FPRY created the
Kosovan-Metohija territory.
The first constitution of the SFRY adopted on 7 April 1963 changed the legal status
of Kosovo-Metohija into an autonomous province within the greater territory of the Socialist
Republic of Serbia. Constitutional amendments in 196811, 1971 and 1974 bestowed upon the
Socialist Autonomous Province of Kosovo the status of republic, although, through
documentation, it was termed a quasi-republic. The legality was more towards that
of a republic with its own Supreme Court and Albanian flag (Dorich, 1992). In the same year,
the second Constitution of SFRY (21 February 1974) was adopted and so was the First
Constitution of Kosovo (1974). The federal constitution granted certain rights to the provinces
of Kosovo and Vojvodina, though they were bound to the federal republic, provincial
constitutions and, additionally, constituents of Serbia.
Due to the legal status obtained by Kosovo through the Constitution of SFRY 1974, the
Socialist Republic of Serbia proposed amendments in order to reintegrate Kosovo. As a result
of Albanian demands throughout the 1980's for republic status, the Socialist Republic
of Serbia passed a new constitution on 28 September 1990. The result of this legislation was
that Kosovo once again became Kosovo-Metohija and its legal status retarded to that under
the First Constitution of the FPRY (Radan, 2001).
Between 1988 and 1990, constitutional amendments to limit the competencies of the
Assembly in Kosovo had been introduced by the Socialist Republic of Serbia and by July
of 1990 the organ was abolished. Due to Serbia insisting that it was a domestic matter and did
not concern the international community, politicians did not use the Arbitration Commission
11
Within the text of the 1968 Constitutional Amendment the territory of Kosovo-Metohija was renamed the
Socialist Autonomous Province of Kosovo.
17

18. of the Conference of Yugoslavia12 (27 August 1991) to directly address the issue of Kosovo
in the international arena.
Additionally, UN Resolution 116013, Resolution 119914, Resolution 120315 and Resolution
124416 were attempts to restore autonomy in the face of the Kosovo Conflict. Restoration
could only be established through containment of hostilities by an international presence.
The justification for Operation Noble Anvil (24 March 1999) was summed up by United
States President William Jefferson “Bill” Clinton when he spoke on the issue of Kosovo:
Kosovo has been stripped of its constitutional autonomy, thus denying [people]...their
right to speak their language, run their schools, shape their daily lives. For years,
Kosovars struggled peacefully to get their rights back. When President Milosevic sent
his troops and his police to crush them, the struggle grew violent.17
The recognition statements by state actors in the Security Council debate held on 13
February 2008 were in accordance with the suppression of human rights, which was the
central principle behind self-determination. No state actor directly addressed the repudiation
of autonomy but focused on the right to self-determination; in itself, this right is not
a justification for recognition. In the case of Kosovo, it was only through UNSCR 1244 that
gave credence to Kosovo claims.
The following section of the thesis will address the approach of reformative secession and
how it could provide a plausible solution to the Kosovo situation. Reformative secession will
be further broken down into three zones of legality under which the peoples of Kosovo
will choose to be governed. These zones will be: Republic of Kosovo, Kosovo as a regional
affiliate of the Republic of Serbia and Institutions administered by both the Republic
of Kosovo and the Republic of Serbia.
12
The Arbitration Commission of the Conference of Yugoslavia was created by the Council of Minister of the
ECC to provide the SRFY with legal advice regarding its dissolution.
13
Passed on the 31 March 1998, imposed an arms embargo on the SFrY under Chapter 7 of the UN Charter.
14
Passed on 23 September 1998, recalled Resolution 1160 and sought to contain and cease hostile activities
between Albanian and Yugoslav forces.
15
Passed on 24 October 1998, recalled Resolutions 1160 and 1199. It sought for the SFRY to comply with the
recalled resolutions and co-operate with NATO and OSCE verification missions within Kosovo.
16
Passed on 10 June 1999, recalled Resolutions 1160, 1199 and 1203. Established UNMIK being the
international civil and military presence within the territory of Kosovo.
17
Statement on Kosovo, (March, 24 1999). Retrieved on 21 February 2011 from
http://millercenter.org/scripps/archive/speeches/detail/3932
18

19. 3. REFORMATIVE SECESSION
The following section of the thesis will focus on reformative secession as a possible
solution directed towards the governance over the territory of Kosovo. For the purpose of this
thesis, reformative secession is comprised of two predominant ethnic peoples residing within
three legal spheres under which all parties 18 have equal interest. Additionally, the use
of the term secession is intended as a final status objective and does not refer to immediate
sovereign status with regard to the Republic of Kosovo.
Reformative secession is comprised of two ethnicities: Albanian-Kosovars, who are only
affiliated with Kosovo as a subject of the international legal system and Serbian-Kosovars,
who are only affiliated as a regional society of the Republic of Serbia. It must be noted at this
point that the two mentioned ethnic peoples should decide as to which ethnicity they belong.
The resulting decision will serve to answer as to whether they are under the jurisdiction
of Kosovo, being a legal subject to the international legal system or an affiliated regional
society of the Republic of Serbia. The third sphere is comprised of the two sub set legal
zones:
1. The relations held between Albanian and Serb-Kosovars;
2. The Republic of Kosovo as a legal subject under the international legal system and its
relations with the Republic of Serbia. (Hehir, 2010)
Each sphere has its own judicial, administrative and law-enforcement institutions which,
at no point, overlap with another sphere. Additionally, each legal sphere is inherent with its
own norms set up either through the Republic of Kosovo (first sphere), the Republic of Serbia
through Kosovo as a regional affiliate (second sphere) or institutions administered by both the
Republic of Kosovo and the Republic of Serbia (third sphere). Each sphere should honour
the other spheres accordingly, and authorities within each sphere should strive to build
and maintain an economic and legal equilibrium. In order to curb any irregularities with
regards to the equilibrium status, a council of arbitration19 should be set up. The legality and
the functioning of the three spheres will be further elaborated.
18
Parties understood as the Republic of Serbia, the Republic of Albania and the Republic of Kosovo.
19
The council should initially be instituted through an international body.
19

20. 3.1 First sphere – the Republic of Kosovo
The first sphere concerns the Republic of Kosovo as an entity under the international legal
system; only persons who have explicitly stated that they are or wish to be Albanian-Kosovars
are subject to the jurisdiction of the Republic of Kosovo. The Republic of Kosovo should
have a national flag, coat of arms and an anthem. It will be democratic in nature with its own
constitution, laws and governed by a legitimate body (Tansey, 2009). The Republic of Kosovo
will gain the capacity of a sovereign state and will, therefore, become an independent member
of the international community.
3.2 Second sphere – Kosovo as a regional affiliate of the Republic of Serbia
The second sphere regards Kosovo as a regional affiliate of the Republic of Serbia; only
persons who have explicitly stated that they wish to be Serbian-Kosovars are subject to the
jurisdiction of Kosovo as a regional affiliate of the Republic of Serbia. The aforementioned
peoples will hold Serbian citizenship and, therefore, will be subject to the constitution and
laws of the Republic of Serbia. The institutions within Kosovo, as a regional affiliate of the
Republic of Serbia, have the right to self-determination in accordance with the constitution
and laws governing the Republic of Serbia.
3.3 Third sphere – Institutions administered by both, the Republic of Kosovo and the
Republic of Serbia
The third sphere is strictly related to the relations held between Albanian and Serb-
Kosovars, the Republic of Kosovo, the regional affiliate between Kosovo and the Republic
of Serbia and the Republic of Serbia. The regulation of this structure can only be sought
through an inter-national legal treaty. Any laws deriving from the treaty must be applied in
compliance with the Principle of Equality. The aforementioned Arbitration Council and any
other council should be comprised of members from the Republic of Kosovo and the Republic
of Serbia in equal proportion.
Furthermore, legal agreements need to be ratified by both parliaments. The three branches
of law - civil, criminal and commercial law - will be shared. This entails a prosecution
concerning two individuals of differing ethnicity which has been explicitly stated beforehand.
The prosecution will administer a shared law in accordance with legislation passed through
20

21. a body comprised of members from the Republic of Kosovo and the Republic of Serbia,
which will operate on the basis of the relations held and maintained between the Republic
of Kosovo and the Republic of Serbia. The Republic of Serbia will accept that the Republic of
Kosovo is an entity under the international legal system. Reciprocally, the Republic
of Kosovo will accept Kosovo as a regional affiliate to the Republic of Serbia (Shapiro,
Macedon, 2004).
It must be clearly stated that this proposal is without precedent in the sphere
of international law. Although with the use of the Constitution of the Socialist Federal
Republic of Yugoslavia 1974, it is possible to show a regressive status for Kosovo. As it was
mentioned in the second chapter, the Constitution of Kosovo became equal in status to that
of the SFRY. It can be further deduced that Kosovo was also equal in status to the Socialist
Republic of Serbia. Furthermore, the proposal of reformative secession only aspires to
separate the citizens where, as was initiated under the Constitution of 1974, a clear distinction
can be made. The third sphere and its unique legal structure apply where there is an overlap
between spheres one and two. The proposal is agreeable with international, state and Serbian
law and in line with the legality of recognition invoked by states that recognize the Republic
of Kosovo.
Reformative secession does not appease all sides, but it does take into consideration all
parties concerned. In order to find a solution, parties’ objectives must be flexible and
negotiable. What does weigh in the favour of a reformative approach is that it limits ethnic
tensions. Any solution regarding such a scenario requires all parties to accept the other
as being on equal ranking. Therefore, the enforcement of any policy upon another party,
which it does not explicitly acquiesce to, violates the framework. Reformative secession is not
a solid structure and requires continuous flexibility in order to adapt to the environment.
It does seek to address all parties concerned and provide them with an opportunity through
which they may be governed.
21

22. CONCLUSION
The Unilateral Declaration of Independence by Kosovo continues to be a contentious
matter, both - the legality of the action and its implications towards future status. It can
be stated that there is no relevant international doctrine or UNSCR that either prohibits or
endorses such an action. Regardless, the Republic of Kosovo has emerged and due
to circumstances has gained recognition. From the 10th June 1999 to the 17th February 2008
Kosovo was an international territory with the possibility of gaining independence through
UNSCR 1244, UNMIK and the Constitutional Framework. The unilateral secession was
enacted due to a frustrated Kosovar-Albanian leadership who had abandoned the international
community’s attempt to come to a consensus on the implementation of the UN Special Envoy
draft. In the first two chapters, two approaches were used to dissect the complexity of the
issue and formulate a clear understanding.
The two approaches of constructive secession and deserved sovereignty were used
to analyze the Kosovo issue and illustrate its complexity. In its theoretical nature, constructive
secession was used to advocate the suppression of human rights, which undermines legitimate
governance and sovereignty. The inherent problem with such an approach is that it does not
offer solutions but rather only foresees the deterioration of the system; to investigate possible
solutions the use of deserved sovereignty was applied. This approach advocates seven
intertwined criteria used to understand the nature of the process whereby internationally
administered territory progresses towards sovereign state.
Reformative secession was invoked to strengthen both — constructive secession and
deserved sovereignty. Usage of constructive secession principles by Russia to recognize
Abkhazia and South Ossetia illustrates a crucial point that such theoretical approaches can
be manipulated by powerful state actors to weaken an opponent or annex neighbouring
territory. Additionally, deserved sovereignty provides sub-state actors with the possibility
of increased autonomy to exert power internationally, which is unfounded and illegitimate.
The purpose of bringing constructive secession and deserved sovereignty together is to
circumvent the possibility of further territorial fragmentation leading to conflict.
Reformative secession, unlike constructive secession or deserved sovereignty, does not
focus on the issue of final status; the notion seeks to create a pragmatic structure through
which the people of Kosovo can function. It addresses the predominant parties and ethnic
22

23. majorities, people's who identify with being either Alabanian-Kosovar or Serb-Kosovar.
These identities then create the legal and administrative structures which operate under the
Republic of Kosovo, Kosovo as a regional affiliate of the Republic of Serbia or institutions
governed by both — the Republic of Kosovo and the Republic of Serbia.
It must be established that Kosovo is sui generis20; the importance of this is that no general
principle can be applied. It is through this thought paradigm that any future status concerning
Kosovo must be considered. Furthermore, it will be exceptions and not the general principles
that determine the future status of Kosovo. Those sovereign states that do not recognize the
Republic of Kosovo do so because any form of recognition could ignite separatist entities
within their own territory. The Russian Federation has explicitly stated that any attempt
to focus on the uniqueness of the Kosovo case is merely an effort to circumvent international
legal structures. This represents the true nature of the dilemma, nationalistic dogma
intertwined with Realpolitik.
The current status of Kosovo rests with the EU and the ongoing Belgrade-Pristina
Negotiations initiated in March 2011. The matters being negotiated may seem otiose in nature
but this is a clear indication of what lays ahead. The EU has stated that it does not wish
to establish a “UNMIK II” and it is questionable as to what extent European Security and
Defence Policy (ESDP) will undermine Kosovo led institutions. Kosovo will test the EU's
ability to act as an impartial mediator with the risk of alienating one ethnic group over another
having the potential to stall any form of dialogue indefinitely. A resolution passed on the 10th
March 2011 in the Kosovo Assembly affirming their support for the Belgrade-Pristina
Negotiations was adopted under the condition that only technical matters and not the
sovereignty and territorial integrity of the Republic of Kosovo 21 would be discussed.
Furthermore, the Austrian Foreign Minister Michael Spindelegger commented on the
negotiations as being progressive but the normalization of relations between the Republic of
Serbia and the Republic of Kosovo were still far in the future22. Starting with the Kumanovo
Treaty of 1999, which brought an end to the Kosovo War, up to the present Belgrade-Pristina
Negotiations much has been achieved, but, for the Republic of Kosovo to be internationally
recognized as a sovereign state, many more obstacles are still to be surmounted. This rests
20
Sui generis understood as a legal term refers to case which is independent from categorization due to its
unique characteristics.
21
(March 11, 2011). Kosovo's Parliament Passes Resolution Backing Talks With Serbia. Retrieved 10 May 2011.
22
(March 28, 2011). Austrian Foreign Minister Lobbies for Recognition of Kosovo's Independence by Entire EU.
Retrieved 10 May 2011.
23

24. with the EU and its ability to find acceptable grounds of agreement between all parties
concerned, and the institutions of the Republic of Kosovo to establish a self-sustaining rule
of law, respect for human rights and an operative free market economy.
24

25. ADDENDUM
Illustration 1: The Ethnic Composition of Kosovo
Source: adopted from OSCE
25

26. Illustration 2: The Ethnic Composition of Kosovo in the 20th Century
Source: adopted from Iricigor
26

27. REFERENCES
N.A. (March 28, 2011). Austrian Foreign Minister Lobbies for Recognition of Kosovo's
Independence by Entire EU. Retrieved 10 May 2011, from
http://www.emg.rs/en/news/serbia/151004.html
N.A. (1970). 2625 (XXV) Declaration on Principles of International Law concerning
Friendly Relations and Co-Operation among States in accordance with the Charter of
the United Nations: The Principle of equal rights and self-determination of peoples.
General Assembly Twenty-fifth Session.
N.A. (January 1, 1985). The Charter of the United Nations and Statue of the International
Court of Justice. United Nations.
N.A. (March 11, 2011). Kosovo's Parliament Passes Resolution Backing Talks With Serbia.
Retrieved 10 May 2011, from
http://www.monstersandcritics.com/news/europe/news/article_1625045.php/Kosovos-
parliament-passes-resolution-backing-talks-with-Serbia
N.A. (1999). United Nations Security Council Resolution 1244.
Buchanan, A. (2007). Justice, Legitimacy, and Self-Determination: Moral Foundations for
International Law. Oxford University Press.
Bogdandy, A., Wolfrum, R., C. E. Philipp. (2005). Max Planck Yearbook of United Nations
Law: Volume 9. Brill Academic Publishers.
Crawford, W., T. (2003). Pivotal Deterrence: Third-Party Statecraft and the Pursuit of Peace.
Cornell University Press.
Cassese, A. (1999). Self-determination of People's: A Legal Reappraisal. Cambridge
University Press.
Dorich, W., Jenkins, B., W., R., Dorich, A. (1992). Kosovo. Kosovo Ica.
27

28. Hehir, A. (2010). Kosovo, Intervention and State Building: The International Community and
The Transition to Independence. T & F Books, UK.
Philip, C. (February 19, 2008). The Sunday Times: US and Britain join rush to recognize
Kosovo.Times Newspapers Ltd.
Radan, P. (2001). The Break-up of Yugoslavia and International Law. Routeledge.
Shapiro, I., Macedo, S. (2000). Designing Democratic Institutions. NYU Press Reference.
Tansey, O. (2009). Regime Building: Democratization and Institution Building. Oxford
University Press, USA.
Welsh, J., M. (2006). Humanitarian Intervention and International Relations. Oxford
University Press.
Vidmar, J. (2009). Vanderbilt Journal of Transnational Law: International Legal Response's to
Kosovo's Declaration of Independence. Vanderbilt University, School of Law.
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29. LIST OF ILLUSTRATIONS
Fischer, J. P. (n.d.). Ethnic Composition of Kosovo according to the OSCE in 2005. Retrieved
May 29, 2011, from: http://en.wikipedia.org/wiki/File:Kosovo_ethnic_2005.png
Icirigor. (n.d.). Demographic History of Kosovo in the 20th Century. Retrieved May 29, 2011,
from: http://en.wikipedia.org/wiki/File:Demographic-history-of-Kosovo-in-20th-
century.png
29