nder the auspices of Helsinki Committee for

Human Rights in Serbia, in November 21 5t

and 22nd in Beigrade was organized a round
table on Kosovo crisis. For the second time in FR
Yugoslavia (the first was held in June 1997) the
meaningful discussion among distinguished
Serbians and ethnic Albanians took place upon the
complex issue that had intensified the crisis of
Second (Former) Yugoslavia and now brought it to
an end. A few foreign guests participated in the
discussion. This 1ime also, a group of people of
good will from both sides shown in their speeches that a tolerant dialogue was possible, that any effort to rebuilt mutual confidence was not in vain, and that their common commitment in active participation of international community in overcoming the crisis was well founded.
We opine that some excerpts from their speeches are worth publishing even today, and for wide
circle of readers, the more so their statements and considerations has actual significance, while some
participants in the dialogue still has important role in solving the Kosovo crisis.
Editor

3
4

5
9
10

14

17
20
22

23
25
28
29
31
33
36
38
39
42
43

45
46
51

54

No Solution Should Be Regarded as a Recrpe / Sonja Biserko

Courage in the C/vil Sense/ Aaron Rhodes
The Principle ofSeif-Determination and the Kosovo
Problem / Ljubivoje Acimovic
Self-Determinat/on: the Key and Means for Creat/ng an
Open Society / Zejnulah Gruda
Human Rights Court is Indispensable/ Thomas Markert
Right to Seif-Determination ofAlbr:rnkm People in Kosovo: International Legal
/ustifiability /Mr. sei. Blerim Reka
Helsinki Principle~ Minorit/es and Seif-Determination/ Branko Milinkovic
Autonomy - Generator of even Deeper Crisis /Prof dr lsmet Sa/ihu
Equ/table - Federal Unit Status o/ Kosovo/ Novak Pribicevic
Process o/ Desintegrat/on is Yet to Come / Veton Suroi
Danger o/ Political Improvisation/ Slobodan Samardlic
Unresolved Alban/an /ssue - Source of the
Balkan Conflict / Christopher Lamb
Self-Determinat/on as a Peaceful Process /Milan Sahovic
Re-Federalization of the FR Yugoslavkr - an Interim
Solution/ dr Gazmend Pula
Controversies and Chalenges ofSelf-Determinat/on of
Peop!es / Milenko Markovic
New Status Cannot Be Inferior to the Old One / IFehmi Agani
Consensus /or the Democrat/c Serbia / livan Berisavljevic
The Problem is Primarily the lssue of Democracy /Konstantin Obradovic
A Direct Question of War and Peace / Yber Hysa-Kaci
. Compromise by the So-Called Interna! Democrat/c
Arrangement/ S/obodan /nie
Without Legal heritage of the FR Yugoslavia / Behlul Beqai
ls the Example ofSouth Tyrol Applicabe to Kosovo?/ Nina Dobrkovic
Curb the Balkan National/sm I Sonja Biserko
1

Kosovars Moum Death ofAgani / Melissa Eddy

Helsinki Charter, Special English Edition

Eelgrade, August 1999
Bulletin of the Helsinki Committee for Human Rights in Serbia, Zmaj Jovina 7, Beigrade
Tel/fax: 637-542 i 639-481
E-mail: biserkos@EUnet.yu
Visit our web-site: www.ihf-hr.org/serbia/index.htm

an
interpretanot correspond
the reali. This problem
August 1999

be viewed through the real relations between

peoples and states, as
as
of changes
international relations.
That is
no
be regarded as
a recipe,
rather as a
for pondering any future solution,
experiences of the others should be also taken
account. 1
also like to underscore that
this is not an exclusively Serbian or
issue. By its very nature and complexity it is
currently tobe treated as
the Balkan and
regional issue. Even a European one. Hence
both Albanians and Serbs must be sensible.
They should also be aware that international
community has made enormous efforts and
Kosovo
showed its goodwill to assist
solution-finding process.
the success of
their efforts depends on us. To provide a

basis for a genuine discussion at this conference, it was necessary to prepare documentation and analytical publications.
made a
concerted
prepare
this occasion
three publications. The first publication in
and Serbian represents our attempt
acquaint the participants
the past and
present European solutions related to selfdetermination and international standards critical to the solution of this issue. The second
publication contains proposals for Kosovo
today as
as the
autonomy since 1972
collection of the iatest documents on the
Kosovo crisis as adopted by international
community.
expect these publications to
be used on a long-term basis in all the expert
and political discussions on the self-determination problems.

he Helsinki Federation tries to encourage

work on this project, to expand interest for
it. Our Federation currently embraces 36
humanitarian organizations Europe, the former Soviet Union and
America. As
know the Helsinki Federation was established
in 1982 to provide certain protection to
organizations for civil and human rights
try to monitor the observance of the Helsinki
Final Act As members of our organization
operate
almost all countries of this region
important role,
the
we could play a
sense that we could encourage the reconciliation of ethnic groups
Balkan peninsula. 1 think we
take
in
confer-

ence, in the fact that it is being held, as it sets

an example
Helsinki Committee in
Yugoslavia, as an independent, private, nongovernmental organizations can open up certain, existing potential, strengthen the confidence and create better conditions enabling
successful denouement
a specific,
this
case, political problem.
can be achieved
if we enjoy the
and
we
to get that support
order to
a
peacefui solution. The work of Helsinki
Committees in this region is often commendable, they are very brave
the civil sense,
needed
and that kind of courage is
region-wide.

Helsinki Charter - Special Edition

he principle of self-determination
peoples is
a norm strictly fixed once and
for all and applicable to all situations. Since it
it
was first worded in the mid-1
has seen a considerable ~v11u11.1v1
with regard
its nature (from a political
proclamation
a codified principle international law), its substance (from a one-dimensional, outward principle to a two-dimensionai
principle extending to the national plane, that
is the political and legal status of a people
within a given State), the geo-political focus of
its application (from European to nonEuropean and back to European territories),
and its historical function. The principle has,
therefore, passed through four stages in its
evolution and today, in the post-cold war era,
it gives manifestations both of its complex
international law substance and the contradictions of its historically belated pursuit in some
parts of Europe.
The principle of self-determination of peoples emerged in the middle of the 19th century as a political principle of nationality, to
serve the constitution of nations, as characteristically expressed in the political slogan of
Giuseppe Mazzini "to every nation its State, to
every State its nation and for the first time
legally elaborated in the works of Pasquale
Manzini. In the early 20th century, or more
accurately, towards the end of World War 1, it
was explicitly proclaimed as the political principle of the right of self-determination of peoples (Lenin in 1917, Wilson in 1918), thus
marking the anti-imperialist and national liberation stage of its evolution in Europe.
Only in the wake of World War II, when it

was built into the United Nations Charter in

1945 and the International Covenants on
Human Rights (1966), the right of self-determination of peoples became a principle
international law. During that historical stage
its function was primarily anti-colonial and
thus of a broader, universal scope so that
it is seen as an integral part of the body
of imperative rules of international law
cogens). Finally, in the 1970s, with the UN
Declaration on the Principles of International
Concerning Friendly Relations and Cooperation of States (1970) and especially
CSCE Final Act (1975), the focus of the sociopolitical function of this principle shifted
towards anti-hegemonic and anti-totalitarian
plane. However, as this stage of the implementation of the principle drew to its end, its
above mentioned contradictory and excessive
form began to manifest itself in certain
instances. The contradictory nature of the latest stage is reflected in the fact that in parallel
with overall integrative trends, notably in
Europe, there are disintegrating acts of some
ethnic entities, that is peoples in relation to
social and legal entities, which they belang to
on the one hand, and on the other their simultaneous aspiration to join the ongoing integrative processes in the wake of winning their
independence.

11

August 1999

The specific experience of the Yugoslav crisis, that is, above all, its acute stage, which
culminated in the disintegration of the former
Yugoslavia, is particularly instructive and worthy of attention. Yugoslavia began to disintegrate precisely under the political mantle of
the principle of self-determination of peoples
and especially the right of secession recognised thereby. In the name of this principle the
aim of uniting all members of a people in one

state was thus promoted on one side, and on

the other the secession from the existing state
was claimed and carried out. The response to
this secession was then counter-secession on
the same grounds and thus the state collapsed. In the name and in defence of the
right of self-determination armed force was
used both ways and under such banner the
war was waged with accompanying largescale ethnic cleansing.
The shortcomings manifested during the
pursuit, that is exercise of the right of selfdetermination in the course of the Yugoslav
crisis (now continuing in Kosovo), deserve to
be noted however briefly.
The right of self-determination was, to all
intents and purposes, reduced only to the
right of secession although from the very
beginning of its codification by international
law in the International Covenants of Human
Rights of 1966 there was built into it, in addition to the external (secession and independence), an internal component relative to the
legal and political status of peoples (autonomy, self-rule etc.) as subsequently specified
also by the Declaration on the Principles of
International Law Concerning Friendly
Relations and Co-operation of States adopted
by the UN General Assembly in 1970 and the
Declaration of Principles Guiding Relations
Between States in the CSCE Final Act of 1975.
,The simplified and one-sided reduction to
secession as a general approach is at variance, as it has been mentioned, with modern
integrative trends.
The right of secession, derived from the
right of self-determination, was exercised
applying the automatic effect of unilateral
decision-making. Moreover, the exercise or
denial of the right of self-determination relied,
as a rule, on force hence the armed conflicts
and war in the territory of the former
Yugoslavia.
The institute of protection of nationar
minorities, that is
rights
the status of
minority peoples, was
accorded a proper
place and application
efforts to solve the
Yugoslav crisis. The same holds true of the
general norm of protection of human rights,

the negation of which took the extreme form

of so-called ethnic cleansing of certain territories.
The international community - both regionally and globally - proved insufficiently prepared and dextrous to prevent excesses in the
actions conducted in the name of the principle of self-determination. On the whole, the
moves with which the international community sought to help to overcome the crisis, to
prevent, and then put an end to the armed
conflicts and bring about a political solution
were, more or less, belated, irresolute, inconsistent and inadequate.
This experience makes it necessary to reexamine
prinself-determination
to the
new conditions, or rather, to adjust both its
substance and the manner of its pursuit. The
basic moves in this direction should be in particular as follows:
a) the principle of the self-determination of
peoples should be interpreted and applied
its integrity, which means that consideration
needs tobe given both to the external and the
internal forms of self-determination pursuant
to the provision on the right of people to
freely determine their internal and external
political status and to freely pursue their
political, economic, social and cultural developmene (Declaration of Principles Guiding
Relations., CSCE Final
Eighth Principle).
Furthermore, it also presumes the obligation
to behave in accordance
all relevant
legal order when exercising
norms of the
the right of self-determination.
b) The part relative to secession should be
applied restrictively,
seeking
strike an adequate balance
interests underlying the request
the interests to preserve
of the
concerned.
should be a valid option
forms of the exercise of the
mination have been exhausted
satisfactory results.
c) The act of secession,
place, should be undertaken
agreement of the parties
11

11

Helsinki Charter - Special Edition

11

that
force and violence.
Proper protection and promotion of
human rights and democratic institutions
suppresses
incentives
secession
ethnically complex states.
Lastly, it is
utmost importance that
United
international
Nations and then, if the case concerned is
Europe - the OSCE, effectively supervise the

existing international order. Secondly, the

norms and their codification
elaboration, better definition and
the principle
self-determination of peoples
and an indispensable regulation
the proceits application. lnsofar as the elaboraand
definition
the substance
this principle are concerned, one needs first
better define the subjects,
is the holders of the
of self-determination, and the
relationship between the right of secession
the obligation
respect
principle of
territorial

the right of self-determination is conrelation

and
the context
it is necessary
indicate
aspect,
also some
a specific
application
this principle
problem, as deriving from the experience
lessons this crisis has taught us so far.
principal actors
in our conbe accorded
siderations:
Yugoslavia (Serbia), the
Kosovo Albanians and the international man(or,
other words: the Serbian side,
August 1999

the Albanian side and the international factor).

- First, one cannot defend the status quo,
as has
been the case,
claiming
highest international standards
human rights are implemented
in Kosovo
it is obvious that the question
raised actively there is the exercise of the
a people (ethnic Albanians) to self-determination,
is, as has already been said, an

its
requested
exercise its right of self-determination.
is thus objectively on the
political agenda
Serbia and Yugoslavia and has been for
some time one
,...,.......,., "'""' . . . its existence
phraseology
the highest
rights
standards Kosovo. One must admit its existence and undertake its adequate solution. lt
also needs to be noted
- contrary
the
thesis about
highest international stanoards - other forms of human rights Kosovo
are
enjoyed in a satisfactory manner
either, largely due to the salient question
political status of the Kosovo majority population;
- moreover, secession
a view to creatstate or joining another
ing an
state constitutes one of possible
exercise of the right of self-detera claim is not unlawful per se
be
as a crime. The latcan be used
means the pursuit
goal are used;
- on the
hand, opposition to an active
armed insurgence - a legitimate right of any
State - must be within the limits of the modern
international order, which means, first and

foremost, the respect for, and compliance

with the norms of international humanitarian
law and international protection of human
rights and fundamental freedoms, equally in
relation to those participating in armed operations and the civilian population in areas
affected by armed conflicts;
- lastly, the Kosovo crisis is not an internal
affair of FR Yugoslavia only. lts international
dimension derives from human rights and
safeguarding of international peace and security. Therefore, no referenda can deny the
international community its competence to
seek solutions to all crises, including this one,
which can have a destabilising international
effect and bring about grave violations of
internationally protected human rights.
b) The Kosovo Albanians:
- First, one needs to proceed from the fact
that Kosovo Albanians have an indisputable
right to put forward their political request for
self-determination and to politically fight for
the exercise of this right;
- in principle, the Albanians (and any other
ethnic group or people) can request any
form of self-determination and it is a matter of
their choice and the existing conditions what
they will ultimately achieve;
- the right of self-determination should not
be exercised so that (an)other people(s), that
is the State concerned as a whole, suffer a
damage far exceeding the benefit the people
exercising that right would reap. lt is logical
and fair to assume this limiting, or rather, balancing factor;
- all means of political struggle are admissi. ble in pursuit of the exercise of the right of
self-determination, both
existing
non-parliainstitutions of the system and
mentary means, including
organisations;
- recourse to armed struggle
the exercise of the right of self-determination is no~
admissible unless it is necessary as defence
against violence and
force
the authorities or other
that case, all parties
and

- the struggle for self-determination must

take note also of the interests of the international community, which relate above all to the
safeguarding of the international peace and
security, and human rights and fundamental
freedoms in consistence with the fundamental
acts of the United Nations order.
The international
- notably
the United Nations and relevant regional
organisations operating under their mandate:
- First, it needs to be pointed out that an
active role and direct presence of the international community in Kosovo are indispensable, and over a relatively lang period of time
at that, as the normalisation of the situation
and achievement of the definitive solution will
undoubtedly take quite some time; needless
to say, the international community will have
to keep an eye on possible changes and
ad just its role and commitment to them;
- if the ongoing process of the settlement of
the Kosovo crisis is disrupted, it is fundamental that the international community takes a
timely, and even a preventive action against
anyone, against any act of non-compliance
with concluded agreements, that is decisions
of the
Security Councii;
- the domestic public at large, especially in
Kosovo, must be regularly and truthfully
informed about the state
affairs and every
step undertaken with regard to Kosovo, both
internally and internationally; it is, therefore,
vital that the international community contributes to ensuring a free
of information
and improvement of the
crisis
- lastly, the outcome
be largely determined
the democratic
transformation of Serbia/Yugoslavia and the
international support to this goal is fundamenand comtal, especially now when a
pletely negative trend
the
of the above
of the principle governing
determination, this could
mon denominator of an
and

Helsinki Charter - Special Edition

o speak about the right

self-determination should be an easy task, primarily
because it represents one of the most important principles of modern, international law
which has strongly affected the character of
unfortunately this is not
our epoch.
always the case, and particularly in milieus in
which individuals and the ruling cliques are
terrified of the self-determination principle.
However it is easy to speak about the princi ple of self-determination, as it was formulated under the influence of doctrine of natural
rights of man," mentioned for the first time in
the Madrid Treaty, as early as in 1526, which
specified that to "effect the transfer of territory
contrary to the wishes of population 11 is contrary to law and that such transfers could be
carried out "only with an explicit consent of
that population." This in fact means that the
self-determination principle is a very old tenet,
originating from the period when feudalism
was morphing into capitalism, from the period
when the new bourgeoisie strove to assert
national sovereignty and create independent
national states. Such aspirations essentially
embraced the right of people to determine
political order and status of their state.
From its inception the self-determination
principle was a dream and hope of millions of
oppressed and disenfranchised people worldwide. Finally in the post- W.W.11 period it
became a reality. The US Declaration of
lndependence expressly underscored that the
authority of each state stemmed from the consent of the subjects of that state, proclaimed
that peoples had the right to decide on the
11

August 1999

form of that authority and on status of their

state, including the right to change any form
of government when it failed to provide for
their livelihood, freedom and happiness, and
specified that they could "sever political relations which tied them to other peoples and
take a special and equitable place among the
forces of this world under the natural laws and
the God of this nature.81
The 1789 and 1793 French Declaration on
the Rights of the Man proclaimed the 11 will of
the people 11 as the basis of any government,
and ruled that sovereignty belonged to people, which meant that every nation was the
master of its country and as such entitled to
freely decide its fate.
The Russian Declaration on the Rights of
Peoples went furthest by proclaiming that
"peoples have the right to self-determination
including secession and creation of independent states. 11
Manzini, and then Lenin and Wilson,
through the "principle of ethnicity", have greatly contributed to the affirmation of the selfdetermination principle. Their ideas were
adopted by the masses which in turn were
guided by the belief that each nation, as a
community of people different from the other ....
11

11

aforementioned reasons
leaders of the anti-fascist coalition have
repeatedly stressed
the
that
people
selfrepresented one of
fore-

people on the
religion, aspirations,
toms etc., had the
ate a
state.

masses, were
cation of Germany and
and liberation of
some Balkan nations
(Serbia, Montenegro and
Rumania).
's
incorporate the
into the Pact
League of Nations was
successful. Also
aspirations of
nations
to
achieve
national liberation, independence and unificathrough, primarily because
right to
self-determination was
backed
cases of
those peoples
under the rule
Hungarian monarchy, Germany,
Russia, and not
cases of the oppressed
peoples of Asia, Africa and even
those opposed interests,
to solve the national issue
protection of national
recognition once they were
League of Nations. This represented a considerable achievement.
the period between
the self-determination right
political principle,
was
international
into the basic principles
extension the plebiscite was not
backed.
10

tion principle
international
Rights of Peoples
the prerequisite
tation of all other
Helsinki Charter - Special Edition

realization and exercise

man
be
4
nation is not free.
enough

the organization
the presentHence no
that a recent,
international
contains
Todayes opene society
closede society
earlier times owes this essento self-determinaof people.
self-determination became an
1

11

purpose character was clearly

of self-determination
cipie resulted in liberation of a large number
states
nations
as clearly
demonstrated
a fourfold increase of
number of the
members: from 51 at the
niC>,ml'",nT-.Tlr"\I""\

August 1999

originate
other principles
guidance for the international
Hence self-deterbelongs
cogens. 4
Due to the aforementioned
anyone dares to openor
the right selfif such a challenge is
it is motivated rather
legal reasons. Fortunately this issue lost
it had had during
first
period, as in
a
!arge number
peoples
and nations obtained
independence.
Same authors,
example Dobrica Cosi6,
consider the right to self-determination the
first principle for any democratic solution.'' 5
we are faced
today are hidden
attempts at denying the right to self-determination, whereby different arguments are used.
For example during the stage of the SFRY dis11

integration, the position that the peoples in

the SFRY have 11 consumed 11 the right to selfdetermination, and, consequently could not
use it again, was much-asserted. This position
dominated the constitutional-legal science of
the
Yugoslavia (Serbia and Montenegro) 6
case of Kosovo it was contended that
Albanians were a minority and not a nation.
Consequently it was also maintained that
being the minority with the domicile state,
and in compliance with regulations in force in
Europe that... a people cannot have more
than one state'\ Kosovar Albanians could not
be the subject of the right to self-determination, nor even entitled to the federal status. 1
There were also efforts to limit the significance
of the right to self-determination to the issue of
self-administration, by devoiding them of the
possibility to create their own state, to be
incorporated into the other state, to change
their status within the framework of the existing state, etc.
Let me briefly tauch on some of these arguments. Firstly the thesis that the right to selfdetermination can be used only once does
not hold water, and that is what most documents and authors of international and constitutional law agree upon. This is backed by the
fact that constitutions of some states expressly envisage that right to self-determination
might include secession, and that many international documents include that right,
although they originate from the countries
whose peoples have by and large consumed
that right.
The second thesis alleging that Albanians
in Yugoslavia are a minority is not an established and confirmed construction. In South
Tyrol or in Belgium there are only several
thousands or tens of thousands of Germans,
whereas in Yugoslavia there are almost two
million Albanians. There are more Albanians
in Yugoslavia then they used to be
Macedonians or Montenegrins in the former
Yugoslavia. Their number in fact equals the
nmber of Slovenians in the former SFRY. To
substantiate the above thesis its authors and
politicians mention the existence of a domicile
state of Kosovar Albanians -Albania-, over11

11

11

12

looking the fact that Moldavians in the Soviet

Union, although a smaller minority than
Kosovars in Yugoslavia, were not treated as a
minority, but had their own federal republic.
That also applies to Serbs and Croats in
Bosnia who also have their own national state.
The thesis that 11 a people cannot have more
than one state disregards not only the recent
past of Germany which had more small
states than there are days in a year the situation in the pre-unification ltaly, and even the
present-day examples of several peoples
(nations) having two or more states, for example, two Germanys, along with Austria and
Luxembourg, two Koreas, two Vietnams, two
Yemens, Rumania and Moldova, Greece and
Cyprus, Bangladesh and Western Bengal.
This in fact means that the existence of
Albania cannot be an obstacle to the existence of the other republic, in which Albanians
would constitute a majority, either within the
framework of the existing state or as an independent state. 8
And finally efforts to reduce the right to selfdetermination to the so-called 11 internal selfdetermination,11 that is the right of people to
choose their own social and political order9
are akin to certain positions in the West, which
consider self-determination a synonym for
self-administration, or freedom of democratic
choice of their own governmene1 or the right
to authentic self-government. 11 Essentially all
these are attempts to highlight the less important aspect (internal facet of the right to selfdetermination) and to overlook the other
aspect of the right to self-determination, on
the basis of which every people or nation living within the framework of the other state has
the right to secession and creation of independent state. The latter constitutes one of
the essential elements of this notion, but also
the most serious problem. the implementation of which often results in armed conflicts 11
(Catanga, Biafra, Northern lreland, Eritrea,
etc.) 11 In the related literature this right is often
mentioned together with the right of peoples
and nations to secession with the aim of
achieving unification with another state (referendum in Moldova included the possibility of
11

11

11

11

11

11

Helsinki Charter - Special Edition

unification with Rumania), as weil as with the

right of peoples and nations to unite with their
former state, but with a changed status, for
example, as members of federation,
autonomous units, but not as units within the
framework of a unitary state. This is in fact in
keeping with Wilson's understanding of the
principle of self-determination on the basis of
which peoples have the right to choose the
kind of government or rule under which they
wish to live; have
right to restructure the
states of Central Europe in harmony with
national wishes (this was the guiding principle
during the division of the Ottoman and AustroHungarian Empires and re-drawing of the
European map). This principle, which is in
compliance
the ideas on self-determination of the highest authorities on this issue,
should be used as
main criterion when
effecting territorial changes 12
Finally 1 would like to say that the problem
are in fact conditions favoring claims and
demands to use the right to self-determination, and not the very right to self-determination. Why secession demands are not voiced
in Switzerland and in the United States, where
they could easily emerge given the racial,
national, religious and linguistic diversity of
populations? How come those countries do
not have to grapple with the issue of nationality?
Opponents of the right to self-determination instead of criticizing the relations which
impose the need to resort to that right, criticize those who in inequitable relations
demand to exercise this legitimate right.
Accordingly the problem is not the recognition of the right to self-determination. Nobody
contends that possibilities for divorce should
be abolished.
marriages are dissolved not
because there is a legal possibility for their
dissolution, but because further cohabitation
is impossible. would like to quote one of the
fathers of the American independence, John
Adams, who wrote: "lt is true that initially independence has not been our goal. But injustices committed by England compelled us to
take up arms. Bereft of any hope that we
might enjoy the kinges mercy, under the rule
August 1999

of England, we were left with no other possibility but to become outlaws. 11

1) Smilja Avramov, Meaunarodno pravo, (VI

edition), Beograd, 1980, p. 58; AvramovKreca, MJP (X edition), 1989, p. 61; Branimir
M. Jankovi6, MJP (II edition), Beograd, 1970,
page 196; Milan Bartos, MJP, 1 book,
Beograd, 1954, pp. 198, 289, 349 and 449.
2) Smilja Avramov, quot. from p. 230; S.
Avramov-M. Kreca, quot., p. 247;
Jankovi6,
quot., p. 197.
3) International Law, UNESCO, Paris, 1991, p.
1052.
4) Mohammed Bedjaoui, General Editor,
International
Law:
Achievement
and
Prospectus, UNESCO, Paris, 1991, p. 1184.
5) Borba 20-21 March, 19936
iodrag
Jovici6, Veliki ustavni sistemi, Beograd, 1984,
p. 238.
7) Mihajlo Markovi6, Dnevni Telegraf", 9 May
1998.
8) Radovan Pavi6, Resenje za Kosovo,"
"Rilindja", 5 August 1990.
9) Antonio Cassese, Self-Determination of
Peoples Cambridge University Press 1995,
p. 101.
10) lbid, p. 21.
11) Smilja Avramov, quot., p. 58; Smilja
Avramov-Milenko Kreca, quot., page 62; Milan
Bartos, quot., p. 213.
12) Antonio Cassese, quot., pp. 20-21.
11

11

11

11

11

11

13

11

t cannot be said that the century of human

rights, decolonization and self-determination
is completing successfully its historic mission.
lt seems that the universal international, legal
principle inaugurated at the beginning of this
century, cannot absorb all national-political
realities and problems at its end. Just two
years before the new millennium, the right to
self-determination, as the political-legal qualiestablished after the WW2, is still an issue
of current interest. From the day Wilson has
today, it
inauguratated it internationally
seems that the successful completion of the
two positive historical processes could be
attributed to the right to self-determination.
Firstly, it helped de-imperialize (mostly) smaller European nations, and secondly, it boosted
the process of de-colonization of nonEuropean nations which were governed by
the major European metropolises.
those processes were completed during the
so-called cold war, the opinions emerged
with the rounding off of the state-legal soverru the
eignty of peoples, from 1918
Seventies, there was no more need for implementation of this principle. However deveiopments in the last decade of this
became very similar to the ones from its first
decade: strong nationalistic, now post-commu nist movements in Europe reactivated
demands for an almost forgotten principle
peoplees self-determination.
the two
aforementioned processes-de-imperilization
and decolonization we are now witnessing the
third process-the postcommunist soverthe shape of
eignization of peoples, either
sovereignization of
Eastern bloc

states, after the abandonment of the doctrine

of limited sovereignty 1, or the state dissolution of the former communist federations (the
USSR, the SFRY, Czeckoslovakia).
Thus an academic, legal and pragmatic
question emerged:
which international
framework more than 20 cases of self-determiantion including secession in the Eastern
and Southeastern Europe should be placed, if
recently we considered the right to sel11
determination
a colonial principle 11
(Cohen). The later was applicable only
late
Eightees and early Ninetees. The normative
aspect of the right to self-determiantion in
international law seemd to be too
for
doctrinary interpretations. The
Charter, its
rights, as
as
Covenants related to
the OSCE documents
place provided
general international-legal framework of this
universal principle. Some resolutions of the
General Assembly (so-called de-colonizing resolutions: Res. 748
; Res. 1541
; Res. 3034
i 972; Doc.
593,
to the coloAnnex B; etc) were related
nial cases, and focused
on
so-called
countries
. But the practice
last decade
this century proves that
self-determiantion, is not, as
Mazrui, so-calied
peoples
determination but
regions, social and
orders,
orders and economic systems aspire
colored contiand not
peoples
nents11, undeveloped societies and undemocratic regimes.
creation
egories of
tions to the
11

11

11

11

Helsinki Charter - Special Edition

1. the post-imperialist self-determination

(creation of new states after disintegration of
the great empires);
2. the post-colonialist self-determination
(creation of new states from the former
colonies);
3. the post-communist self-determination
(creation of new states from the form er communist federations).
Here however we shall
est

Czechoslovakia. But
in the case of
Kosovo international community stubbornly
insisted on the principle of inviolability of the
first European border regime of this century:
the one established at the London
Conference in 1913. But if there is so much
insistence that borders cannot be changed the Kosovo case- it means that the people
who aspire to independence must remain by
force and against their
within the frame11
those inviolable borders"!
we
this is contrary
Helsinki process and
international law
the

11

Kosovo as a burning and still unresolved

European issue
this century remained
untouched
the three historical processes
of self-determination, although comparatively
speaking it could have been resolved
the framework of any of the three abovementioned processes. But
either academic or
political discussions of this problem, the
specters of inviolability of borders" and the
principle of preservation of territorial integrity
and sovereignty of states" have repeatedly
arisen. But have the European borders really
remained unchanged?
After the Versailles Treaty the inviolability of
the so-called Versailles borders was sanctioned; after the Paris Treaty the same happened with the so-called inviolability of Yalta
borders and during the cold war the inviolaof the so-called Helsinki borders was
sacrosanct.
a cursory glance at the
state of European borders during this century
shall prove to us that
the case of
Kosovo the change of borders (in Europe) is
not allowed. On the other hand European
borders of Helsinki have already been
changed
German unification, those of
Yalta
state dissolution of the fomer USSR,
and the Versailles borders by disintegration of
former
SFRY
and
the
former
the
11

11

11

11

11

11

11

11

August 1999

military occupation does not

administration over a "t",.....-,"t",.......,
also states that
forces
could perhaps establish control over a territobut could not create international legitimacy for such a state of affairs.
Kosovo, as a classical problem of peoplees
self-determination, within the framework of the
so-called colonial modei, fulfills all conditions
and criteria of international and legal doctrine
which has developed in the past ten years
with the view to clarifying and specifying
(quite ambiguous and generalized norms of
international law) in which cases a people can
be recognized the right to self-determination
up to secession (Halper, Scheffer, Buchanan,
Knopp, Howse, Halei, Hunnum, etc.) lf we disregarded the aforementioned international
documents related to self-determination
(although they absorb the case of Kosovo as
a classic case of self-determination) and took
into account only its scientifically-based criteria and applied them on the case of Kosovo,
conclude that Kosovo Albanians fulconditions-cumulatively so-to be recognized the right to self-determination up to
secession. These three basic criteria are:
1. How a people (a part of that peopie)
came under the foreign state jurisdiction-by its
free
or by force?
2. Was the treatment of that people (a part
of that people) in that state humane or repres11

sive?

3. Have the people (a part of the people)

expressed massive and firm will to stay within
that state or to secede from it?
Answers to the three above questions-criteria are generally known and clear:
1. Kosovo was forcibly annexed to Serbia in
1912, after the Balkans wars, by military occupation and not by free will of its majority population (here we are dealing with a particular
dimension: military occupation and economic
exploitation of natural resources of colony by
foreign metropolis).
2. The state of Serbia in the last 86 years
treated Albanian people in a repressive and
genocidal way (a particular dimension of
repression with elements of apartheid and cultural colonialism; also favoring the people of
metropolis over the peopie of colony cultural, language, religious, ethnic and cultural
fields).
3.
the 1991 referendum Kosovars opted
massively, publicly, clearly and firmly for independence of Kosovo (a particular dimension
of an express will of people of the colony to
liberate themselves from the metropolis).
The abovementioned clearly indicated that
from the aspect of international law Kosovo
fulfills cumulatively all three prerequisites for
the recognition of the right to self-determination. Namely Albanian people in Kosovo,
against their will were forcibly annexed to
Serbia (so-called "illegal taking model"); the
Albanian people were subjected to systematic state repression (so-cailed 11 Government
misconduct model"); and finally, an overwhelming majority of Kosovars people publicly expressed its
for independence at the
referendum (so-called "Communitarian aspiration for national self-determination 11 ) .

Sources
1. Robert Howse & Karen Knop:
Federalism, Seeession and the Limits of
Ethnic
Accommodation:
Canadian
Perspective 1, "New Europe Law Review 1, Vol.
1, No. 2, Spring 1993.

11

2. lvo Banac: 11 Ethno-Violence in Former

Yugoslavia", 11 New Europe Law Review 11 ,
Special Proceedings, Fall, 1993.
3. Minasse Haile: 11 Legality of Seeessions:
The Case of Eritrea11 , "Emory International Law
Review 11 , Vol. 8, No. 2, Fall 1994.
4.
Mazrui: "Towards a Pax Africana",
1967
5. Pauline H. Baker & John A. Ausink:
11
State Collapse and Ethnic Violence: Toward
a Predictive Model 11 , 11 Parameters-US Army
War College Quarterly11 , Vol. XXVI, No. 1,
Spring 1996.
6. Patrick Thornberry: The International
Law and the Rights of Minorities," Oxford,
1991.
7. Allen Buchanan: "Federalism and
Seeession: The Morality of Political Divorce
from Sumter to the Lithuania and Quebec11 ,
1991
8. Lea Brilmayer: "Seeession and SeifDetermination: A Territorial lnterpretation 11 , 16
Yale
International Law, 177, 1991.
11
9.
State
Sovereignty-Chance
and
11
Perspective in International Relations, Edited
by Sohail
Hashmi, Penn State university,
1997.
10. Hurst Hanum: 11 The specter of secession: Responding to Claims for Ethnic SelfDetermination11, "Foreign Affairs", March-April,
1998.
11. John Hillen: 11 Picking Up U.N.
Peacekeepinges Pieces 11 , 11 Foreign Affairs 11 ,
July-August, 1998
12. 11 Gazzetta Ufficiale della Padania", No.
001, 15 Settembre 1996.
13. Le regioni della Padania Foligno,
1996.
1 The Charter of OUN.
15.
Res. 748
16. UNGA Res. 1541
'1960.
17. UNGA Res. 3043
'1972.
18. UNSC Res. 855 (1993)
19. UNSC Res. 1160 (1998), SDRESD 1160
(1998), 31 March 1998.
20. UNSC Res. 1199 (1998), SDRESD 1199
(1998), 23 September 1998.
21. UNSC Res. 1203 (1998), SDRESSD
1203 (1998), 24 October 1998.
1

11

11

Helsinki Charter - Special Edition

1975 contains
III
signatory states
(1) observe
sovereign
states,
(2) refrain from using or threatening force, (3)
inviolability
borders,
territorial integrity
of states, (5) peaceful resolution of disputes,
(6) non-interference in internal affairs,
respect human rights and basic freedoms, (8)
equality and right of people to self-determination,
cooperation between states and (1
conscientious compliance
undertaken
commitment under international law.
2. The new stage in the resolution of issues
related to national minorities was initiated
the creation of the post of the OSCE
Commissioner for National Minorities envisaged in the second Chapter of 11 Helsinki
Decisions 11 adopted at the 1992 Summit. 2 The
primary task of the High Commissioner is not
the protection of individual or collective rights
of members of national minorities, but preventive dipiomacy. His task is to respond in the
earliest possible stage to tensions arising
from the issues of national minorities which
could evolve into a conflict in the OSCE area.
The Final Act does not envisage any hierarchical relations between the ten principles. lt
also underscores that each of these principles
will be interpreted by taking into account all
the others.
The principle of joint interpretation was
expressly stressed within the eighth principle
August 1999

the right of people

selfit is said that
principle the member states
compliance with corresponding norms
act
of international law, including those related to
the territorial integrity of states. By defining the
contents of this principle the Final Act states
that 11 all peoples have the right to determine in
liberty when and how they want to define
their internal and external political status, without external interference and to realize as they
wish their political, economic, social and cultural development!'
The principle of the right of people to sovereignty was included in the Final Act at insistence of Western countries which in that way
wanted to lend their support to democratic
transformation of the countries of real socialism to free themselves from the Soviet hegemony.1
The principle that the right of people to selfdetermination must be observed nowadays is
very often and unjustly reduced only to the
right to secession. Taking into account the
demand of the Final Act that each principle
must be interpreted jointly with the others,
notably with the principle of territorial sovereignty, conscientious compliance with commitments undertaken under international law,
and sovereign equality of human rights and
basic freedoms and the respect thereof, it
could be said that in practice the exercise of
the right to self-determination could cover a

broad range of different status solutions which

do not challenge the respect for other principles of the Final Act.
Within the framework of the seventh principle which speaks of the respect for human
rights and basic freedoms there is also a formulation according to which the states 11 in
which territory there are national minorities
committed themselves to respect the rights of
persons who belang to those minorities, their
equality before the law and to provide them
with a comprehensive possibility to genuinely
enjoy human rights and basic freedoms. For
15 years CSCE/OSCE has adhered to this formulation of the protection of national minorities.2 A major step forward was made at the
Second meeting of the Conference on Human
Dimension held in Copenhagen in 1990.
The document from that meeting emphasizes that issues related to national minorities
can be resolved in a satisfactory way only
within a democratic political framework based
on the rule of the law. The same document
particularly emphasizes the following rights of
members of national minorities: free use of
their mother tongue, establishment, in keeping with their national laws, of their cultural,
educational and religious institutions, establishment of unhindered mutual contacts, as
well as contacts beyond their country, with citizens of other states, exchange of information
in their mother tongue and participation in the
work of international non-governmental organizations through their associations.
The Copenhagen Document did not envisage the right to autonomy. This right was
mentioned only at the 1991 Geneva Meeting
of the experts on national minorities, and only
in the shape of a mild-worded and non-binding recommendation. Namely the report on
this meeting stated that member states assert
with interest that some of them have achieved
positive results in a satisfactory way, through
(... ) autonomy on the territorial basis, including the existence of consultative, legislative
and executive bodies, elected at free and periodical elections.
During the first five years of his mandate
the High Commissioner was engaged in the
11

11

11

18

easing of minority tensions in fifteen OSCE

states. 3 As early as in 1993 he was active
eight states: Albania, Macedonia, Hungary,
Rumania, Slovakia and the three Baltic statesLithuania, Latvia and Estonia.
1994 he initiated his missions in Moldavia, Ukraine,
Kazakhstan, Georgia and Kirghiztan. In late
1995 he started his mission
Croatia.
The problems he had so far dealt
could fall into several categories. The largest
number of issues was related to the right of
national minorities to use their mother tongue
and receive education
their mother tongue
(the Greek minority in Albania, the Albanian
minority in Macedonia, the Slovak minority in
Hungary, the Hungarian minority in Slovakia
and Rumania).
view of the importance of
this problem, the High Commissioner initiated
the adoption of special recommendations
related to education rights of national minorities.4
In addition to the aforementioned there
were also issues related to organization of
local administration bodies in areas in which
members of national minorities were represented in a large number, then the scope of
the corresponding media contents in minority
languages
(Albanians
in
Macedonia,
Hungarians in Rumania), and also other
aspects of minorities' participation in public
life. In the former republics of the Soviet
Union, which obtained independence after
1991, the High Commissioner dealt with the
issue of citizenship of Russians living
Estonia, Latvia, Lithuania, Kazakhstan and
Kirghiztan.
Finally some states demanded the highest
territorial autonomy or even secession
(Gagauzians and Russians in Moldavia,
Crimea in Ukraine, Southern Ossetia
Georgia).
In each of these situations the High
Commissioner familiarized in depth with the
central problem burdening relationship
between national minorities and the majority
people. On the basis of such knowledge he
came up with concrete recommendations, the
observance of which, in his opinion, could
ease tensions and establish ethnic harmony
Helsinki Charter - Special Edition

the country. The guidelines of these recommendations are contained in the OSCE documents, that is, in commitments undertaken
the OSCE member states to protect national
minorities.
Activities of the
Commissioner could
be divided in : (1) recommendations to governments
pursue adequate national minorities policies, (2) assistance in drawing up and
elaboration of legal texts
bearing on
minorities
organization
tables

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

others embarked upon dialogue
to present the situation from their angle. The existing OSCE regulations do not foresee any
sanctions for non-observance of the High
Commissioner's recommendations. However
in case
non-observance the High
Commissioner can delegate the case for
examination to the Permanent Council, which
in turn can delegate this problem to an even
higher instance.
his activities the High Commissioner in
the first five years of his mandate
respected territorial wholeness of each country in
which he operated.
secessionist
trends were very strong in some of them, he
did not back or encourage them. He relied on
his mandate and the basic OSCE principles.
He insisted on the solutions, within the framework of each state, which could provide for a
harmonic development of a state as a whole.
his approach
the resolution of those
problems, the High Commissioner insisted
that the protection of national members was
in the interest of their members, but
not
also in the interest of a state in which they
lived, for such a protection ensured stability
and peaceful development. lf a state wants to
have loyal citizens among members of national minorities, it must show to them a major
August 1999

dose of loyalty,
meeting their sensible
demands.
The High Commissioner deems that countries
origin of each minority group play a
major role the protection of national minorities.5
their proper engagement in the
process, they will give a major political weight
to the issue of status of a minority group in the
country in which that minority lives. A constructive and sensible approach of those
countries to the problem of 11their
other
ease
possible tensions, and help harmonize
relationship between the
the
authorites
the
in which it lives.
Activities of different long-term
in those states charactersecessionist movements which
selfdetermination, play a
role analysis
the observance of Helsinki principles. This
applies to Georgia (the region of Southern
Osetia), Moldavia (Transdnestrovia) and
Ukraine (the region of Crimea) in which, to a
!arger or lesser extent, the ethnic Russian
population wants independence. Similar is
the example of Chechens, who want to
secede from the Russian Federation and
all those cases
obtain
independence.
the efforts of the OSCE permanent missions
and political bodies focused on the establishment of dialogue between the confronted
sides, respect for human and minority rights,
and also on the primacy of principle of territorial sovereignty of the state concerned over
demands for self-determination.
The example of Nagorno-Karabah, the area
peopled by Armenians, and situated inside
Azerbaidzhan, is very illustrative. Karabah
obtained the factual independence, but was
not internationally recognized. In 1992 the
OSCE initiated so-called Minski process
tasked with resolving this dispute through
mediation. The diplomatic formula for the resolution of the dispute for a lang time implied
full observance of the territorial integrity principle and all the other, equally important, principles. On the basis of this formulation
Armenia believed that Karabah could obtain .,..

independence by resorting to the principle

of self-determination.
But, at the OSCE Lisbon Summit 1996, a
somewhat different formulation in the shape
of the statement of the OSCE President, was
adopted. lt was based on three principles: (1)
the observance of the territorial integrity of
Armenia and Azerbaidzhan, (2) resolution of
the legal status of Karabah through an agreement based on self-determination, implying
"the highest degree of self-administration
within Azerbaidzhan 11 and (3) guaranteed
security of the Karabah population. Such a
framework indicated the primacy of principle
of territorial integrity of states over the right of
people to self-determination, understood as
the right to secession.

1 Ljubivoje A6imovi6, 11 CSCE and the

Yugoslav crisis" in the compendium Meaunarodno pravo i jugoslovenska kriza,
ilan
Sahovi6, (ed.) IMPP, Beograd, 1995, pages
120-164.
2 Description of the mandate of the OSCE
High Commissioner for national minorities
was
published
in
the
compendium

Nacionalne manjine: u meaunarodnom i

jugoslovenskom pravnom poretku, B.
Milinkovi6, S. Milinkovi6, ed. Medunarodna
politika 11 i drugi izdavaci, Beograd, 1997,
page. 106-112.
3. 11The Role of the High Commissioner on
National
inorities in OSCE Conflict
11
Prevention , The Foundation on nter-ethnic
Relations, Hague, 1997.
4.
'1The
Hague
Recommendations
Regarding the Education Rights of National
Minorities International Journal on Minority
and Group Rights, Val. 4, No. 2., 1996/97, pp.
199-213.
5. "Report of Max Van Der Stoel OSCE High
Commissioner on National Minorities", The
OSCE Meeting on Implementation on
Regulations Concerning Human Dimension
12-18 November, 1997, Warsaw.
11

11

20

think that the notion of autonomy should not

1be elaborated from the philosophical stand-

point for it would then become similar to su?h

mundane dilemmas like, shall 1 go to the c1nema, what shall 1 wear today, what name shall
1 give to
child. In other words, shall I be the
master of my own fate. In view of the aforementioned 1 suggest that the notion of selfdetermination be treated from the political and
international law standpoint. That is the gist of
our conference and discussion.
Under the 1974 Constitution the Assembly
of Kosovo had the same rights like the assemblies of other republics, as mentioned by one
of the participants. 1 can say that Kosovo exercised those rights until 1981. that year students of the University of Pristina staged massive protests demanding not only social and
economic rights, but, due to lack of prospects
in Kosvo, also voiced claims that the province
be accorded the status of republic. In fact,
judging
all parameters and indicators,
Kosovo deserved that status. But the communist regime of the former Yugoslavia and
Serbia used those demonstrations as a pretext to massively incriminate Kosovar
Albanians as a people and brutally satanize its
intelligentsia. As 1 was professionally engaged
in some of the trials, maintain responsibly
that from 1990 about 3,000 Albanians were
sentenced to an average 7 years in prison.
Nusi forgot to say that 3, 450 young Kosovars
were sentenced to 25,000 years in jail, or 250
centuries. The repression and persecution of
Kosovars continued. lt culminated in March
1989, when the Serbian regime, hiding behind
the phrases about an alleged modernization
of the federation and Serbia, abolished the
constitutionally guaranteed autonomy of
Helsinki Charter - Special Edition

Kosovo in all spheres (political, cultural, economic, educational). The people of Kosovo
strongly opposed those hegemonistic aspirations and changes and tried to attract the
attention of domestic and international public
opinion to its plight by staging peaceful
demonstrations in 1988 and 1989.
the
ensuing, brutal police crackdown on demonstrators 79 students were killed, several hundred wounded and several hundred arrested.
When the Serbian regime headed by Mr.
ilosevi6 failed to convince Kosovar
Albanains to accept measures which did not
guarantee them any autonomy (the alleged
autonomy was reduced to 8-year education
and made impossible continuation of education at secondary schools and university) after
1989 it dissolved the Kosovo Assembly and
other provincial bodies. lt is a well-known fact
that 300,000 pupils received primary education imparted by 20,000 teachers. Not only the
teachers were sacked, but 20,000 students
and 900 professors were banished from different organizations and faculties. Added to
that 110,000 Kosovars lost their jobs in other
spheres of life. By those repressivee measures Kosovo, with 2 million strong-population, was forcibly transformed into a colony,
governed by discrimination and segregation
laws.
This is a typical system of apartheid. What
has been happening in Kosovo cannot be
only called eviolations of human rightsg, for it
is a broader notion. Similar violations exist in
other states, while the Albanian people have
been stripped of elementary rights, and heavy
taxes and duties have been imposed on them.
In parallel the predominantly Serbian police
and judicial bodies continued their repression. Until 1997, 25-30 Albanians were killed
every year by the police, under different pretexts, while several hundred were intimidated.
In the past decade Albanians could not freely
leave their hause to go to work, for their lives
were endangered. lt must be pointed out that
no policeman was punished for the misuse of
his official duty in Kosovo, Hence in the past
ten years Kosovars rightly considered the
Serbian police as a punitive expedition. The
August 1999

total economic, political and security situation

in Kosovo has closed off any prospect of better life in Kosovo and caused massive emigration of Kosovars to many European countries, notably Germany and Switzerland. The
Albanian people in Kosovo opposed that segregation and apartheid of the Serbian regime
by peaceful, Ghandi-like methods. In
response to international pressure and criticism, the political and official propaganda of
the Serbian regime continued
doctor the
Kosovo, by falsely insisting that
facts of life
Kosovars were guaranteed all individual and
comnational rights, as weil as freedoms,
pliance with the highest international standards. Owing to international pressure the
agreement on stabilization of education in
Albanian language had been reached, signed
by Mr. Milosevi6 himself, but in the past two
years, only one University building had been
emptied, while the remaining 19 universities
remain occupied. Five or six secondary
school buildings have been made available to
the Albanian pupils, but the rest are still off
limits for them.
lt the very outset of negotiations, the resolution of education situation could have had a
positive impact on the overall Kosovo situation. lt could have boosted the hopes of the
young generation, for they were forcibly
thrown out of their school buildings. But as
the education problem was not solved, the
belief was strengthened that cohabitation in a
kind of autonomy, guaranteed by international community in the shape of Mr. Hilles proposal for agreement, is not the genuine solution for Kosovo in the rump Yugoslavia. lt is
now widely thought that such an autonomy
would be a generator of even deeper crises
both in Kosovo and Serbia, but also in other
regions.
Hence this is the last moment to recognize
to Kosovars the right to self-determination, as
an interim solution. As regards this issue, the
Albanian side insisted through its concept of
solution, that it could accept an interim solution for three to five years, after which period,
the right to self-determination should be exercised in a different way.
21

II versions of the draft document, partially

made public, were characterized by many
contradictions, oscillations, changes of
emphasis in the treatment of some key
aspects of a future solution. lf a solution is to
be of a permanent character the aforementioned did not augur weil for it. But it is quite
possible that such, frequently major deviations, resulted from respect for suggestions
and objections of firstly, one side, and then,
secondly, of the other side in the negotiations.
Obviously their distanced and opposed positions require a compromise solution, which
could ultimately be acceptable to all the
involved parties.
lt is often stressed that a major dilemma
was whether a solution should be sought
within the basic framework of Serbia or the
Federal Republic of Yugoslavia. Both side
raised objections, but some versions went too
far to meet the expressed or supposed interests of the other side. The timetable and comtentatively
petencies
concerning
the
announced census in Kosovo and elections
laying the groundwork for local and provincial
self-rule are still imprecise. Also the. term
province is in some versions replaced by the
term territory, and terms autonomy and selfrule are used alternatively.
The Kosovar Albanian side publicly voiced
its criticism and objections when versions of
the draft document were ran by Koha ditore
and Washingon Post. However the Beigrade
authorities denied having seen different versions of the suggested solution, and stubbornly reiterated their adherence to eleven
points formulated by the Serbian government
on the basis of Milosevi6-Holbrooke
Agreement. This adherence is motivated by
the decision to place the search of any future
solution within the framework of Serbia and
the Federal Republic of Yugoslavia.
11

11

11

11

22

Representatives of international community

involved in the process seem to tolerate
objections of the two, domestic sides in the
dispute. They patiently reiterate that some
drafts do not represent the final solution, but
rather a part of the negotiating process in
which both sides are free to espouse their
opinions. Serious states and politicians first
negotiate and discuss suggestions, and then
eventually reach a compromise. International
representatives say this ought to happen in
this case too.
Talks will have to take place, but 1 doubt
that they will produce any tangible results
without an active and direct engagement of
competent international factors. But their
drafts could be used as a basis for finding a
compromise solution, while annexes thereof
could help solve many collateral problems.
In context of the future search for a compromise solution 1 would like to put forward
my concept which could hopefully satisfy
both sides, but without making them very
happy. As concerns the expressed position of
the key factors of international community that
a solution had to be found within the borders
of the Federal Republic of Yugoslavia, but
without elements of the current status quo, 1
suggested, a year and a half ago, at our joint
meeting in Ulcinj, that a solution had to be
found within the Yugoslav Federation and had
to include an equitable - federal unit status of
Kosovo. Now 1would like to add that, in view
of all that has happened in the meantime,
from the Ulcinj meeting to present-day deveiopments, 1 am even more convinced that my
approach was right, just and both politically
and pragmatically grounded. A decade-long
Serbian police, judiciary and constitutional
repression in Kosovo, to which Kosovar
Albanians responded by passive resistance
and by constituting parallel public services,
Helsinki Charter - Special Edition

put on the back burner the central issue of

status, and brought to a standstill any move
towards a political solution. Continued repression inevitably led to radicalization of a part of
younger Albanians, disillusioned with failure
of the Ghandi-like resistance, and consequently bent on resisting the brutal authorities. The Drenica massacre mobilized support
for the Kosovo Liberation Army and made
more peopie join its ranks. From small-units
and groups the KLA has grown into the liberation guerrilla force. Despite its military defeat
suffered at the hands of major police, army
and paramilitary forces, it has evolved into a
political factor to be reckoned with.
the same time mutual confidence, as
limited as it was in Kosovo, has been now
totally eliminated. Nobody is seriously concerned with the re-establishment
cohabitation conditions. The Serbian political opinion
has reached the broadest consensus on
Kosovo, based on the logic of repression and
force. In recent times the ideas of division of
Kosovo accompanied by a whole package of
ancillary measures, for example, humane
resettlement" oust an euphemism for the most
brutal ethnic-cleansing) are being put forward. This conspiratorial objective should be
immediately discarded, because the only civilized solution which will respect mutinationality and the highest international standards will
have to embrace Kosovo in its entirety.
In the course of forthcoming negotiations
the federal approach merits
attention,
although it is likely to be challenged in a serious and coordinated way. An alleged
Montenegrin opposition to a solution with the
federai dimension or link, has been hyped
recently. But one cannot help but remember
that most responsible representatives of the
reformist government of Montenegro stated
they would gladly accept any solution agreed
on by Beigrade and Pristina. lf a solution
includes the federal status, the existing
Federal Constitution will have to be inevitably
amended. In that case Montenegro will have a
natural right to formulate its relevant position.
lt seems to me that if Montenegro remains
11

August 1999

true to its economic and political reforms,

democratization and proven ability to nurture
multinational understanding and tolerance,
then it would be logical to expect its acceptance of and support for the federal status of
Kosovo, which of course can be reached
through negotiations if they are well-paced
and conducted in a good-will atmosphere.
But if there is too much procrastination and
manipulative suppression of key issues, the
community, bent on reaching a
solution which will guarantee the final cessaail armed conflicts and prevention of
further humanitarian catastrophe,
be ultimately compelled to impose a solution ensuring the attainment of those objectives at an
international Dayton-like Conference. At such
a conference attempts will be also made to
establish a mechanism guaranteeing a full
implementation of all dimensions of the
adopted package on a lasting basis, which is
in the interest of all countries in this region,
threatened by further prolongation of the
Kosovo crisis, and even more by a possible
spill-over of the conflict into the neighboring
countries.

Process of disintegration of the former

Yugoslavia is yet to be completed. The
fact that four new states are now apart of the
international community (plus 11the FRY11 as the
state-pariah) does not mean that that process
has been completed, not only because the
Kosovo issue has not been resolved, but
because those countries are yet to regulate
their relations. The best example is Bosnia
and Herzegovina which in a way represent the
axis of future relations between Serbs and ~
111

23

Croats, and of integrity and identity of the

Bosniak nation.
Definition of the status of Kosovo, that is
the process of its self-determination, is a part
of the FRY disintegration and that of the future
relations between the peopies of the former
Yugoslavia. That means that the process of
self-determination of Kosovo is on the one
hand a part of the last stage of disintegration,
and on the other hand a part of the future
process of regional cooperation.
B. The process of the FRY disintegration
was induced by the transition from communism to democracy, creation of national states
and definition of the new national states contrary to the European integration, the
European economic power and the Atlantic
program of security.
those elements as the moving forces of
self-determination also motivate the Kosovo
concept: Beigrade is still the capital of an
unreformed state; it has not devised a cohabitation model but had made the repression
model. lt is clear why it opposes to be integrated into the main European processes.
This model of government has not been
imposed, but is in fact the result of consensus
of the strengest pillars of society in Serbia.
Also the creation of the Serbian national
state, one of the main moving forces behind
the destruction of the former Yugoslavia along
with the wish to create non-Serbian national
states, has not yet been completed. The
process of the Kosovo self-determination and
creation of the state advances in parallel with
the creation of the Serbian state in an ethnic
sense.
An important part of the process of selfdetermination is the ability to create democratic self-administration: Serbian has failed in
that, thus creating conditions for the others to
search for their own ways of self-administration-building. Kosovo is not an exception
from that rule.

C. The process of the SFRY disintegration

was and still is the issue of the European stability, a kind of test for international institutions
in the post-cold war period. Kosovo is important precisely because the Albanian question,

which makes its core, is not limited to the former Yugoslavia's borders.
One of the most important by-products of
the bloody disintegration of the SFRY is a high
degree of involvement of the international
community, the first of this kind after the end
of the WW2. Hence the issue of self-determination of peoples and states of the former
Yugoslavia has evidently become a multilateral question.
The Kosovo case is accordingly of great
interest for the international community.
D. In its current involvement the international community is also focused on the building on democratic institutions of self-management in Kosovo. Efforts are made to broker an
agreement between Kosovo and Beigrade,
and to make that agreement fit the general,
sustainable image of stability in the former
Yugoslavia. Even if the process of resolutionfinding turns out to be successful, the two key
issues will nonetheless remain open: the
future status of Kosovo and the future status
of the Kosovo surroundings, that is the FRY, in
which three different political and economic
systems will exist.
that happens the most important element is perhaps the fact that all nations and
states of the former Yugoslavia recognize the
inherent need to regulate their relations. lf that
is so the Kosovo case of self-determination
might represent the test of regional cooperation, that is, of the trend of getting closer to the
European magnet.
Helsinki Charter - Special Edition

in discussion of such sensitive issues one

should adhere to generai standards of both
state and international law. A specific problem
is of course the implementation of those principles. Therein lie misunderstanding and disagreements, but it cannot be ever said that
one situasome standards are applicable
the other.
firm
tion and non-applicable
conviction is that those two principles are
overlooked when dealing with Kosovo, Serbia
and the FRY. They are disregarded both in
the sphere of international politics (so-called
mediation), and in the sphere of expert discussions and analysis.
When 1said 1would touch on some theses
'
1 primarily had in mind the issue exposed
Mr. Pribi6evi6, the one of Kosovo as a new
'
third, federal unit. But his expose was tantamount to voicing a political position without
any serious explanation. He didn't mention
any argument
Kosovo should be a federal unit. His speech represented the political
urging and not an analysis of an exceptionalserious problem or of possible consequences of the solution he advocated. When
such radical propasals, which have an impact
on the existing state order, are put forward,
then we are faced not only with questions
which affect only the existing regime, but with
August 1999

a host of new ones. That is basically

the difference between the scientific
and political approach to the problem. But at this moment 1am not interested in mere political advocacy, nor
even in the possibility that an external
force .might install the state order
which would be unacceptable for the majarity
of citizens. 1 am interested in reasons and
consequences, that is why Kosovo should be
status
federal unit within the
be consequences
such a move.
of issues which should be
There is a
answered
proposals beyond the framethe existing state order are
unless,
course, ane counts an
the latter. The issues which
answered, are, for example: the
II
citizens of Serbia and
Montenegro
and the free expression
thereof; the constitutional procedure involving
such a radical change of the state order; necessary alteration of distribution of prerogatives and jurisdiction between the federal units
and the federal state; the change of institutional structure and decision-making procedure in a possible, complex federation. Only
when answers to the above questions are
provided, a seriaus discussion an the
proposal can ensue. Otherwise it can be said
that the proposal is a sheer improvisation. The
authorities also improvised when they constituted the existing institutional structure of the
state, and the international factor improvised
when it
forward political solutions for this
country which are very much removed fram all
the recognized standards of state and international law. 1would like to underscore that 1
am not disputing the political likelihood of a
solution imposed by force, but rather that
such a solution could threaten the long-term
interests of the people who live here.
1 shall
touch on the two issues which
struck me as worth explaining when 1listened
to the story of Kosovo as a federal unit. By the
way that thesis is neither new or original. lt
was marketed by the US administration a year
and a half ago and it appears in an intituional- ....

ly vague formulation in the

documents,
from the first to the last version. While 1 listened to the opening remarks, 1thought of two
pmblems which should be resolved before
the proposal on Kosovo as a federal
is
formulated, and which the author did not
mention. One question is related to the foreign relations, and the other to the internal
relations.
Firstly, if Kosovo were to become a federal
unit, the procedure of international intervention, which 1 would call the Badinter precedent, could be applied. 1would like to remind
you that the Opinion on the Interna!
(Administrative) Borders of the Former
Federation (opinion 3 of the Arbitration
Commission) contains a contradictory position that at the time when a federal unit
obtains independence (such a moment is
anticipated although 1 do not know on which
basis?) the internal borders between federal
units become borders protected by international law. Who can guarantee that a new arbitration commission on the FRY would not
insist in this precedent and subsequently give
the recommendation for the peaceful settlemene of the dispute? Albanians would make
such a claim even if the new agreement did
not guarantee them the right to self-determination (to secession) after three years. lt is
widely-known that Albanians temporarily
renounced their maximal claim- independence now-only because they know that_ for
the time being borders cannot be changed.
But it is also widely known that the evolution
of provincial borders into the federal unit borders would be just a prelude to their further
evolution into the genuine state borders. The
scenario of the former multinational federation
would be re-enacted. lf Kosovo were accorded the status of the federal unit the federation
similar to the old one would be re-established.
lt would subsequently - disintegrate. This
would lead to the re-feudalization of this state,
expanding beyond Kosovo. lf the demand of
the Albanian national minority were met, then
the same thing could happen to the similar
demand voiced by another national minority,
territorially concentrated in other region. That
11

11

is a direct consequence of the approach

which identifies the minority rights with the
rights of administration in a determined territory. For this state this is a principled problem
for which it must find an adequate, lasting
solution, and not a problem of a single (albeit
most numerous) national minority.
The second question concerns internai
relations, that is, a constitutional procedure
ensuring the federal unit status of Kosovo.
Pribi6evi6 said that the federal constitution
should be changed. That is quite clear. But
there is a very precise procedure of change,
unless we consider a possibility of an extraconstitutional change. The FRY constitution,
like constitutions of all federations, belongs to
the so-called difficult constitutions. The twothird majority of both houses is needed for the
ordinary constitutional changes, while the
consent of both the Serbian and Montenegrin
Parliament is needed for changes concerning
the fundamental issues of federation. The formation of the new federal unit most certainly
belongs to the sphere of the fundamental, federal questions. In other words parliaments of
Serbia and Montenegro would have to have
their say about this matter. As parliaments,
governments and parties of both republics
take a negative stance on such a possibility, it
is clear that such a proposal would be immediately rejected. 1 would like to remind you
that due to the difficult procedure of constitution alteration Milosevi6 failed to push through
the change of the constitutional status of the
president of the federal state when he needed
it. Montenegro then disagreed with his move,
and now it disagrees now with the idea of
Kosovo as a third federal unit. We are aware
that the FRY constitution is not a good constitution and that its many provisions should be
amended, but its parts related to the federal
relations nevertheless constitute the factor of
balance. Nowadays the constitution is violated by Milosevi6 and his political allies, but that
does not mean that the others should behave
like them. In that case the chaos would be
complete, and the victor would be the one
who has more force. That is precisely why 1
am speaking about procedural matters, for if
Helsinki Charter - Special Edition

the naked force and coercion are continuously applied in the resolution of these problems,
we shall never find the way out.
1would also like to make some remarks on
the thesis expounded
the Albanian colleagues that the autonomy of Kosovo was
suspended in 1989 and that the minimum
starting point for any talks on the status of
Kosovo is its 1974 constitutional status. They
reject status qua and urge status qua ante as
the starting point for the far-reaching claims.
lrrespective of the concrete significance of
constitutional status
Kosovo and constitutional interpretations thereof, there was this
habit to identify the Kosovo issue with the
banian issue,
understand the
Albanian issue as a territorial issue. The then
constitutional status of Kosovo was essentialsuch
ly contradictory, and hence motives
interpretations were not justified. Kosovo was
a constituent element of the federation, like
Vojvodina and a part of Serbia. Added to that
Albanians as an ethnic group had the national minority status. And Albanians were those
who massively rebelled against that vague
and contradictory constitutional status of the
Province. The 1981 demonstrations were held
under the slogan Kosovo republic!' Their
objective was to link Kosovo to the federation
and to be rid of Serbia. On the other hand the
Serbian side insisted that Kosovo was above
all a part of Serbia.
this is remindful of our
today's discussion on the status of Kosovo. The only difference was that then some
other people were in power
and not Milosevic and his
allies. This makes us conclude that the problem is
much deeper than the nature
of the regime, although 1 am
positive that a different regime
in Serbia would have differentpositioned and solved this
problem. Probably by predominantly democratic means
and in the interest of the state
survival, and not egotistically
as the current regime has
11

August 1999

been doing it.

1want to stress that nobody- Albanians, the
old and the new Serbian regime - was satisfied with the 1974 constitutional status of
to
Kosovo. Albanians were the first to
forcibly change the status of the Province, but
in what they failed the Serbian regime succeeded. In the meantime the old state which
gave a certain federal legitimacy to the
provinces disintegrated and the new one, on
the new federal basis, was created. Hence
there are no special constitutional or political
reasons to go back to status qua ante.
that
case
Serbian side could rightfully claim
the 1963 status of provinces.
lf the problem is viewed from all its complex
angles and if the two principles which 1 have
mentioned before are taken as the starting
point, it becomes evident that until now no
good solution for Kosovo has been put forward. When 1 say good 1 mean satisfying for
both sides. On the other hand it is quite certain that the federal unit solution is an
extremely bad solution, as it satisfies only one
side in the dispute and departs from the wellknown standards of the state and international law. In view of that the task of experienced
individuals and those with good political will is
to search for just and realistic solutions, and
avoid the traps of the naked political realism
that is, those of the short-term political improvisation.
11

11

11

11

he principle of the right to self-determination should ensure its own implementation. Conversely, if the two sides cannot broker an agreement, it will remain just a pipe
dream, a non-starter. The failure to reach the
agreement resulted in the escalation of war
and the consequences thereof (with the exception of Slovenia), in Croatia, then in Bosnia
and now in Kosovo, where the war unless it is
stopped could
into a bloodshed . The
legal norm, that is principle, if it is not sanctioned, does not either represent a legal norm
or principle. lt would be illusory to say that
such a principle exists if the implementation
of goals proclaimed by the United Nations, other international organizations, the Helsinki
Conference and the European Union is not
ensured. We have a bevy of states, ranging
from Algiers, Tanganyika, to Kenya which
obtained their independence by force in the
post-WW2 period. However, the international
.community has recognized that fact, that is
the force. That is why it is in our interest to
guarantee legal principles in order to prevent
the use of force. An eight-month lang war
became a bloody conflict, and if is not
stopped, if something is not done, Kosovo
could become a country without people, for
annihilation of both the Serbs and the Kosovar
Albanians could come about. Both nations
are entitled to the right to self-determination.
But it also belongs to all the other people who
live and work in Kosovo. person's homeland
is the place in which he was born, in which he
creates, and in that place better life conditions
should be created. 1 wouldn't amend Professor's Gruda thesis, but rather try to make it
more precise: we have a nation with 22 states,
and that is the Arab nation which has one culture, one history, but it has 22 states and no
nation in the world finds it difficult to recognize
22 states. Why then the world would not

28

accept the two Albanian states? In other

words we would not have two Albanian states,
but two states composed of people who live
in those territories; we would not have an
Albanian state, but the state of people who
live and work in Kosovo, or the state of the
Albanians, the Serbs, the Turks and all the
others. The state of Switzerland is composed
of three peoples - the ltalians, the French and
the Germans and nobody is bothered with the
fact that three nations constitute a single state. Moreover, Switzerland serves today as a
role model for the resolution of ethnic relations.
has the war then erupted in Kosovo? By extension if nothing is done, the consequences will be even more drastic. 1appeal
to the international community and the United
Nations to enable the population of Kosovo,
Kosovar Albanians to suplement that principle
through independence. The Kosovar Albanians should not be allowed to take up arms or
use force for this could result in an/ even
bloodier conflict. Hence the pressure and
even force should be used to compel thE3
Serbian authorities to allow the implementation of that principle, for if that does not happen we shall be faced with terrible consequences. There will be a large number of casualties so that Kosovo will not be of any use
either to the Serbs or the Albanians. As regards the principle of self-determination it
exists from the time immemorial.That right
belongs to all. lt belongs to the Albanians and
it belongs to the Serbs. lt also belongs to
other peoples. Once the issue of Kosovo is
resolved the Balkan conflict will stop. lf it is not
resolved the source of conflict and war
remains. These who say that the implementation of the principle of self-determination and
emergence of Kosovo as a state would only
increase tensions are not well-intentioned
people or they are simply ignorant people,
because they do not live here or are unfamiliat wuth this issue. In other words the source
of the Kosovo and the Balkan conflict is the
unresolved Albanian issue. The Albanian people now live
five states, and if Kosovo is
. constituted as a state less than a half of total
Albanian population would live in it.
Helsinki Charter - Special Edition

he subject of
expose is Ways implementation of the right self-determination
the
Yugoslavia.
goal is
contemporary international
significance and the mandatory
strength of
right to self-determination and
possibilities
implementation. 1 believe
that efforts made
order to
a peaceful
and successful solution
problem
Kosovo can be successful
if its international-legal aspects are taken into consideration.
Let me welcome our Albanian colleagues
who came in such a large number from
Kosovo to take part
this conference. 1 am
personally pleased to have the opportunity to
see them for two weeks running. Namely
seven days ago we jointly discussed the work
of the Hague Tribunal for the Former
Yugoslavia at the conference of the Fund for
the Humanitarian Law. 1 hope that our cooperation will continue in the future with the view
to contributing jointly to a peaceful solution of
the Kosovo issue and in keeping with the
international law.
You might be surprised by the fact that 1
shall read the conclusion from the text you
that
doing so 1 will
have received. 1
make more clear my approach and assessment of the approach taken in the implemenation of the right of people to self-determination in the Yugoslav crisis, that is, how the
Kosovo issue should be tackled on the basis
of that approach. That conclusion reads:
lf we look now at all the legal controversies
which have followed the FRY disintegration
and creation of the new states in the light of
the right to self-determination and the real
processes through which
Yugoslav crisis
has gone, it is more than obvious that its
11

11

11

August 1999

interpretations were subjected to the stances

of political forces instead of being subjected
to the genuine legal contents and international-legal conditions of its implementation.
Although it is difficult to assume that that
implementation of international-legal norms
and corresponding commitments of states
can be consistently implemented in practice,
we were faced with a drastic Situation: instead
of asserting peaceful, democratic methods of
its implementation, the solutions for open
issues were sought at the battlefield."
However, the right of people to self-determination represents one of those rules of
international law from which implementation
no state can be exempted. lt can be corrected
only by compounding its mandatory implementations with mandatory implementation of
other rules of the same legal strength, and by
their interconnecting. lt concerns one of the
imperative rules of international law (ius
cogens) on which today's world order is
based. The right to self-determination is both
an individual and collective right enshrined by
the UN Charter and Covenants on the Human
Rights. As an individual right it enables individuals to freely elect political power and
social and economic order, and as a collective right, the form of state order and directions of foreign policy of the state community,
whereby all options are taken into consideration- creation of independent states, unification with other states, autonomy and the other
forms of cohabitation, and the right to secession. But all this under the condition that
implementation of those options be of a
peaceful and democratic character, without
the use of force and coercion.
1 do not want to bother you any langer
about interpretations of the right to self-determination by the international law. Much has
been said about it and is still being said in the
FRY. lt seems to me that it is much more
important to acquaint our public opinion with
the conditions under which it could be implemented in practice. There is a general opinion
that the international law has not dealt with
them substantively and that it was left to the
states to regulate thier implementation. That is

29

not quite true. States should undoubtedly regulate this issue within their frameworks, but it
is not to be considered as an exclusive jurisdiction of state. As legal experts we had extensive discussions on this issue at the outset of
the Yugoslav crisis. We were divided on this
issue: some thought that that implementation
of the right to self-determination was reduced
to the constitutional question and some
thought that this was an imperative rule which
did not allow any limitations in the implementation of the will of the people, except for
those prescribed by the international law. 1
don 't think we should go back to that kind of
discussion, but deem it important to underscore that the non-compliance with the right
to self-determination by states entails their
international liability. The UN Commission for
International Law has lang ago emphasized in
its Draft of Rules on Responsibility of States
that the internal legality of the state acts was
irrelevant in the assessment of their legality
under the international law. (Article 4 of the
Draft).
As regards the right to self-determination in
the second half of the Twentieth century the
correlative rules were determined. Their contents should provide for the consistent implementation of this fundamental human right.
Those rules were generally confirmed in the
Declaration on the Principles of International
Law regarding Friendly Relations and
Cooperation of States. That Declaration was
accepted by consensus in 1970, at the 27th
jubilee session of the UN General Assembly.
That Declaration is still considered as the primary document for interpretation of rules of
international law. 1 shall not bother you by
enumerating all the rules, but shall rather indicate principles which underlie the implementation of the right to self-determination. There
is on the one hand a rule according to which
those who want its implementation must be
guaranteed the right to express their will to
that end and that no coercive measures will
be taken against them. On the other hand
there's a rule that recognizes the right to the
armed struggle if the right to free expression
of will and the assistance of international com-

munity are denied. But there is also a protective clause which bans the others, notably the
neighboring states to fan through their actions
the activities leading to the break-up of territorial integrity or wholeness of the states which
respect, within their borders, the right to selfdetermination and have democratic governments representing the whole population.
To put it briefly it is clear that the international law views the implementation of the
right to self-determination as a peaceful
process which should unfold within the framework of a democratic society, and without the
external interference, unless there is a need
for international community's assistance.
When viewed from this angle the statement of
the new Prime
inister of Albania that
Kosovar Albanians should decide on their fate
seems very constructive. 1 mention this statement only as an indication to be possibly
taken into account when discussing the possibilities for settlement of Kosovo crisis in
keeping with international law and existing
rules on the implementation of the right to
self-determination.
There are three factors at work. The
Serbian, that is the Yugoslav side and the
Albanian side, and the international community. All the 1998 developments, when the
Kosovo issue was characterized by an active
use of the armed force, its
internationalization, the signing of Milosevi6-Holbrooke
Agreement on the presence of the OSCE verificators and the NATO air control, in my opinion indicated that the situation was best
understood by the international community.
The goal was to stop armed conflicts which
were threatening the regional peace and to
prevent the internal armed conflict exapand in
the FRY. Hence those agreements, confirmed
by the UN Security Council's resolutions
could be considered a requirement for the
kick off of dialogue between the sides in the
dispute on the right to self-determination.
Now it seems that the aforementioned facts
are overlooked. In fact it is tobe expected that
preparations for talks and the very talks will
last lang, unless a turnround, boosting their
start-up, happens. In view of my task 1 would
Helsinki Charter - Special Edition

not like to overstep the limits of international

law, but 1 shall nonetheless say that what is
done and suggested by Beigrade, as weil as
the fact that the Albanian side has not
reached its internal agreement, make us conclude that there are no efforts to implement
the right to self-determination in keeping with
its rules. However one shouid not overiook
proposals on betterment of relations and life
in Kosovo, at a local level, for the success of
this venture and preservation of peace represent a constructive contribution in that diection.
realization of the right to self-determination.
There are the "externaP' and the internal variants, that is the offensive variant which
includes secession and the defensive variant
which does not include secession, but contains different composite, power-sharing
structures in the federai and confederal
arrangements. However, it should be noted
that the prospects for the attainment of the
right to self-determination to which a population aspires depend largely on the extra-legal,
that is primarily political factors, notably
because it is seemingly impossible to draw
from the modern international law a firm, precise and consistent legal conclusion applicable to all eligible or tackled cases of claims for
self-determination. Unfortunately this issue is
too often resolved through the policy of
power, that is the notorious principle Force
before rights instead through theoretical,
legal or even political arguments. The fate of
such subjects, that is of a people or the other
groups which aspire to that right, depends to
a large extent on the political factors, including the naked balance of powers in any given
case of the political struggle. Hence it should
be concluded that the theory and practice of
the international law at this moment offer only
an uncertain and general framework for the
realization of such claims to self-determination. In other words the matter of the potential
exercise of the right for self-determination at
this stage of development of international law
is unfortunately and often in a contradictory
way of extra-legal character. lt is in fact treat- ~
11

11

11

assive and systematic discrimination and

violation of human rights of a population,
even if that population has an imposed, inferior status of the national minority, represent
the only internationally valid, legitimate and
indisputable basis for the exercise of the right
to self-determination, including secession.
lndeed the legitimate right to self-determination should be recognized to a nationality
which is able to express its own political will,
although it has the status of minority and has
not obtained any form of statehood, that is,
currently makes up a part of population of an
independent state!'
With respect to the Declaration on Friendly
Relations it can be maintained that in case of
massive and systematic discrimination,
threatening the existence of population, international community should encourage and
facilitate the utilization of the right to selfdetermination in order to prevent subjugation
as weil as the massive and systematic discrimination and violations of human rights of
population.
fact there are different models for the
11

August 1999

11

11

11

11

11

ed as a political matter and category par

excellence, and from case to case, through a
series of guidelines which should at least
exclude escalation of armed conflicts and
threats to the regional peace.
view of the above the modalities for the
self-determination of Kosovo are the only adequate framework for a stable and long-term
solution, among other things, because the
two completely different approaches- the territorial one, as well as the one of ethnic selfdetermination are equally applicable to the
Kosovo case. Namely Kosovo has defined
borders, which as such are not disputable
(although their quality is very disputable) and
within those borders live the majority of population, that is 90% ethnic Albanians.
The claim for territorial self-determination is
a quest for a special political status for a
defined territory (the current case: Kosovo)
and of all people who live in that territory. On
the other hand the ethnic self-determination
presupposes recognizable ethnic nations or
individuals who share the same genealogical
descent. Hence the criteria for establishing
who are the people who have the right to selfdetermination are identical to those which
serve for identification of an ethnic nation:
joint origin, joint language, joint religion, joint
culture or any combination of those factors
(all of this is evidently applicable to the
an
Kosovo case, author's remark). That is
ethnic nation should have its own political
institutions, and be recognized a political
identity by the international community. That
identity could be either an independent
national state or ethnicaily mixed political entity within a state. lt is interesting to note that
both the aforementfoned approaches to selfdetermination theoretically could be applied
to Kosovo. In view of that it is worth mentioning that self-determination could have two different objectives:
independence, including
secession (which is the case with the declared
political goal of Kosovar Albanians, author's
remark) or a certain constitutional and legal
status within a state, for example (con)federal
republican status within the framework of a
given composite state, and recently suggest-

ed as an interim solution by the Albanian

negotiating team.
The majority of claims for the right to selfdetermination indisputably carry a serious
conflict potential. This also applies to Kosovo.
view of that it
be probably very difficult
to foil attempts to resolve this case on the
principle Force before rights. That is
the solution to the majority of ethnic conflicts
must be sought in the essentially new constitutional arrangements, and because the
constitutional engineering which we, for
example, saw in Bosnia, unfortunately after,
and not before the devastating war, is certainly a better alternative from the re-drawing of
international borders and consequently massive ethnic-cleaning. By extension such a
solution cannot be discarded as a possible
outcome of the so far insurmountable SerbAlbanian conflict, and particularly if one has in
mind the international stance on the inviolabilof the current international borders (redrawing them by force), although such a
stance has not been so consistently taken in
the case of Bosnia.
view of the above the timing and modalities of self-determination, as an interim solution, could be successfu
established
through negotiations at an international
Dayton-like conference on Kosovo. The
framework and subject of such negotiations,
in view of the international constraints, seem
to be self-imposed by the fact that the current
FRY is composed of three ethnic wholes, the
Serbs, the Kosovar Albanians and the
Montenegrins. On the other hand the political
and constitutional framework of that country is
bi-national, that is bi-republican. On the basis
of such a major structural discrepancy only
one conclusion can be drawn, namely that the
re-federalization of the FRY, providing for an
equitable status of the republic for Kosovo,
could represent a solid interim solution. That
solution would eliminate the .currently enormous conflict potential and at the same time
create the basis for the fulfiliment of the
delayed right to self-determination of Kosovo,
in a peaceful and orderly way, when the mutually agreed interim period expires.
11

11

11

11

11

Helsinki Charter - Special Edition

11

to
period when
national issue and self-determination
were suppressed, or considered the things of
the past, or
instances, as local
issues,
collapse
the block system
the forefront of the
they were catapulted
politics. According
some authors ethconflicts even rank among the four major
cns1s
contemporary world.
causes
The other three are the world poverty, the
heating of our planet, the arms build- up, (A.
Giddens). lntensification of ethnic conflicts in
the last quarter of the Twentieth century
encouraged the development of methodology
on the management of ethnic conflicts.
2. Self-determination ranks among the
most controversial notions in the sphere of
political theory and practice. lt is either denied
or presented as an absolute notion. Denial is
justified either by the need for preservation of
the territorial integrity of states or by the claim
that the civic freedoms and rights make
superfluous the the use of the right to selfdetermination. On the other hand, that right is
made absolute by understanding that an ethnic community can attain freedom and preserve its identity only if it is constituted as a
separate state.
Self-determination carries within itself the
odium of the destructive principle which
allegedly causes collapse, fragmentation of
the complex states and hinders integrative
processes in the world. That odium was
strengthened by the collapse of the former
socialist federations and emergence of the
secessionist trends
some Western
European countries. This is being served by
the thesis that the national state increasingly
loses its raison d'etre in the contemporary
August 1999

context of two complementary processes globalization and regionalization.

Without calling into question an evident
process of globalization it seems that the
arguments corroborating that thesis do not
speak so much against the national state and
the very principle of self-determination, as
much they speak against the character of
some federations and integrative associations. States and associations which are not
the resuit of free and democratic determination of peoples, but were imposed by ideological and political considerations are more
susceptible to collapse from similar, democratic communities. There are visible differences
between Switzerland and for example the former USSR or between the European Union
and the former Comecon.
3. That odium is strengthened by the fact
that in principle abuses of the self-determination principle might be committed (and have
been committed), for that principle can be
used to justify conquests, aggressions and
ethnic-cleansing. That principle was exploited
by fascism and stalinism, and recently by the
ethnic nationalism in the former Yugoslavia.
Abuses are however not a valid enough argument for the denial of this very principle, but
rather an argument encouraging us to look for
an answer to the question: why and under
which conditions such abuses are committed?
In our opinion there are a few ways which
either eliminate or reduce to the minimum
potential misuse of this principle. One of the
ways is to remove ambiguities and erroneous
perception of the gist of the principle, which
could consequently lead to the understanding
of its genuine significance in the contempo- ...,

33

ERBIAN-ALBANIAN DIALOGUE
rary integrative and democratic processes.
The second way is to develop and implement
the methodology on management of ethnic
conflicts as weil as the practice of exchange of
experiences between countries and regions.
Finally the third way, which should be adopted by states and international organizations,
notably the United Nations, would be tantamount to clarification of the status of the principle of self-determination of peoples from the
standpoint of international law, that is equal
to explanation whether it is possible and necessary to arrange this matter by norms of
international law. Same of these suggestions
and proposals are given in the book Selfdetermination between autonomy and secession which is before you.
The book deals with some new, attentionattracting elements in the evolution of the right
to self-determination. First of all there are proposals that this matter be regulated by norms
of international law, that is, to see, which conditions justify secession. There is also an
interesting UN initiative to project a concept of
ethnic self-management which could represent a satisfactory replacement for secession.
Neither suggestion annuls the external aspect
of the right to self-determination, that is, of the
right of people to their own state. That right
remains the inalienable right of all peoples,
but in the context of these suggestions, it features not as the first, but as the last measure.
We think that the continuation of work on
the evolvement of the aforementioned suggestions and initiatives, unfolding under the
auspices of the United Nations and Helsinki
Committee for Human Rights (in the shape of
expert teams, elaboration of projects, etc.),
could first of all enrich the area of methodology of management of ethnic conflicts and secondly contribute in a direct or indirect way to
clarification of controversial issues which concern the very principle, the way of its implementation and its subjects, as weil as the
stance of international community on it.
Wherein lie the controversies ?
4. Difficulties in the implementation of the
right to self-determination up to secession lie

34

in the fact that there are no precise criteria for

the secession conditions. ls that right
reserved only for the so-called state-forming
people and not for national minorities and
minority peoples? What, for example, Scots
lack to be able to become the legitimate users
of that right? Or for that matter large national
minorities as Kosovar Albanians or the
Hungarian minority in the countries bordering
with Hungary?
On the other hand that right, although a
fundamental, inalienable right of people, is
not an automatic right. In other words it would
be unthinkable to allow all ethnic groups,
more than 5,000 of them, to automatically
stake a claim to that right. The self-determination right is conditioned by ethnic and numerous other considerations (historical, cultural,
economic, geopolitical, defense, preservation
of regional stability) etc.
We are sometimes faced with the situation
when the territory is inhabited by the majority
population aspiring to secession and the
minority opposed to it. lt is a special problem.
Complexity and delicacy of that problem is
visible in the example of Kosovo. There are
similar examples in other meridians (Quebec,
for example.) Minorities, in accordance with
their number, should be included in the negotiating process irrespective of character of
solutions (are they sought within the state or
outside the state) because their very fates are
at stake. Those minorities should be given full
constitutional, inter-state and even international guarantees that they will enjoy full
national and civic rights in any possible political arrangement.
6. There is also a view that there are contradictions between the right to seif- determination and the stance on inviolability of internationally recognized state borders. The truth
is that this contradiction is softened by an
additional stance of the international community that borders can be changed only
through an agreement of the two confronted
sides. That is, in a peaceful way. Hence only
the use of force is excluded and not the
change of borders.
But the following dilemma still remains:
does the ban on the use of force call into
Helsinki Charter - Special Edition

question justifiability of the armed liberation

struggle for independence (if all other legal
resources are exhausted) ? lsn't the right to
rebellion one of the elementary principles of
democracy? lf that ban, on the other hand,
does not call into question the legitimacy of
rebellion, then how and under which criteria
the distinction between the liberation struggle
and terrorism is established?I Same of these
criteria could be: a) if the regime of the majority nation continues intimidation and harassment of the minority ethnic community and
discards any compromise solution to the conflict b) if armed struggle has the backing of the
largest part of the minority ethnic community,
and c) if armed actions do not intend to harm
civilian population.
On the other hand the following actions
could be recognized as terrorism: a) actions
intended to inflict civilian casualties (abductions, torture and killing of civilians, burning
down of houses and similar), b) non-acceptance of the peace process (oniy acceptance
of an armed victory, for example Hammas
with respect to the PLO, the so-called KLA
with respect to Rugova and his DAK and 3)
absence of support by the majority of population. Those could be also the features of the
state terrorism of the ethnic majority if it,
being in power, uses force in ethnic conflicts.
In the absence of objective criteria, arbitrariness and double standards are likely to be
used when distinguishing between the genuine liberation struggle and the sheer terrorism marketed as liberation struggle. In recent
ethnic wars in the former Yugoslavia, massive
expulsions and liquidation of civilian population were justified by goals of national liberation, defense of homes, etc. Several decades
lang struggle of the Kurdish people, dispersed in three states (Iran, lraq and Turkey)
was often labeled as the Kurdish terrorism.
But so far no Kurdish expert or the involved
party has stated that we might be !n fact witnessing a form of 11the state terror", in view of
rejection of any dialogue and continuation of
intimidation.
We in Serbia are particularly interested in
11

11

August 1999

the following question: why there is no common ground between the authorities, practically the whole opposition, and the international community in the assessment of the
character of the KLA? How come their assessments differ so much? 1 am of opinion,
although there are understandably different
opinions, that the armed activity in Kosovo
was generated to a large extent by the repressive policy towards Kosovar Albanians and
the long-standing denial of the problem of
Kosovo by the Serbian authorities. The
Serbian authorities were unwilling to negotiate, but willing to dictate to the others. The latter was demonstrated by the farcical mission
of the Serbian Vice President, Ratko Markovi6,
in Pristina.
That will to dictate to the others generated
the following situation: at the very outset of the
armed conflict the KLA terrorism was not evident, but the state terror in curbing the KLA
armed activities was. Now, in the wake of
Holbrooke-Milosevi6 Agreement the situation
is different: the Serbian authorities reject
armed force as the way of resolution of the
Kosovo problem, and the KLA, even before
that agreement, and especially after it had
been reached, resorted to terrorism, which
obviously harmed the interests of Kosovar
Albanians. International community failed to
condemn the KLA terrorism. That move would
have removed its image of partiality and
would have contributed to curbing of extremists on both sides, that is those who oppose
the solution of the Kosovo knot as envisaged
by Milosevi6-Holbrooke agreement.
7. In principle ethnic problems are internal issues of sovereign states. But those
issues, in determined Situations, can evolve
into an international problem. Those problems are internationalized or outgrow the
framework of internal jurisdiction at least in
two cases: a) when human rights are violated
and b) when ethnic conflict becomes a threat
to the regional and world peace. When it tries
to implement its peace-keeping interventions
the international community clashes with a
historically obsolete concept of the state sov-

35

ereignty, by which authoritarian, and not the

democratic regimes, try to prevent such
engagements.
But to be truthful the very international
community has no uniform criteria as to when
and in which cases its intervention is needed,
and how and in which way it should be implemented. International community should stop
situations
applying double standards
involving states which have no close ties with
the big powers or its allies. Effects of the UN
peaceful actions should not be lessened and
sometimes even paralyzed by the conflicting
interests of the big powers. Moreover such
actions of the world organization should not

be instrumentalized by one big power or a

group of big powers, like in the time of bipolarism and cold war. The major prerequisites for the success of peace-keeping
engagement of the United Nations are impartiality regarding the sides in the ethnic conflicts and coordinated interpretation and
implementation of the UN decisions (but not
of the resolution 1199 of the Security Council).
1 view the reform of the United Nations, in a
democratic sense, as one of the key prerequisites for placing the right to self-determination
within the framework of a positive evolution of
contemporary democratic and integrative
processes.

llow me to express my gratitude for the

opportunity that we have to talk about a
very serious topic, an emotionally charged
topic, but in a rational tone, as it was done
yesterday by the esteemed colleagues
A6imovi6 and Sahovi6, That tone respected
the differences and different opinions, views,
approaches and tried to give them a democratic framework in order to overcome them
democratically rather than antagonize them
and turn them into confrontation. 1 note with
satisfaction the presence of many relevant
Albanians at this meeting, in contrast to the
absence of Albanians in talks with Milan
Milutinovi6. We are interested in the resolution
of Kosovo problem. Albanians are interested
in the solution, and Albanians are willing to
participate in any talks focusing in a constructive way on problems of Kosovo. But as the
interested parties they favor a serious
approach to the issue and avoid carnivals with
funny playing around with an alleged discussion on the resolution to the Kosovo problem.
Yesterday Mr. Volfgang said he feared he was

misunderstood by Albanians. 1 can assure him

that he was properly understood. We all know
that potential self-determination was a very
complex issue, perhaps contradictory, perhaps incomplete, and perhaps not easily
attainable. Also the realization of that selfdetermination has its price. But 1 would like to
add another approach to that problem. That
approach would try to anticipate the price of
non-attainment of self-determination. We are
paying a relatively high price for that nonattainment, as is Serbia. Let us not forget the
fact that there is an autocratic regime in
Serbia, and that the unresolved Albanian and
Kosovo issue rises the price of that problem.
One fifth of Kosovo has been burnt down,
thousands were killed, tens of thousands disappeared, hundreds of thousands were displaced-that is the price of war in this year
alone. What will be the price next year if the
solution is not found? Hence 1 advocate an
approach which would take into consideration
also this fact. When talking about this topic 1
must first tauch on the issue of minority, that
is, on the fact how Albanians can be a minority. Firstly 1 would like to say that the issue of
minority is not only the issue of number and
Helsinki Charter - Special Edition

proportion, but rather the status issue; the

examples of minorities
erature is replete
being an aspect of satisfaction, that they in a
constitute subjugated groups to make
the majority people a dominant group. When
one speaks about
nation and the national
one speaks about the nation and
about those who do not belang to that nation.
any rate the defense of minority means the
defense of those
discriminated or
discriminated. 1

aged to preserve the entire educational system.

schools and faculties worked under
terrible conditions, but they worked. As
Albanians demonstrated
creating an operational parallel system in the fields of education and spart that they could perform all the
functions characteristic of the nation, 1 think
that the insistence that Albanians are a national minority must be dropped. lf one views the
political and total development in the post-war
period, it can be seen that
root-cause of all

as a

forming
are mentioned.
if that is the idea, then it is not difficult to
talk
about numbers and proportions, nor
to treat the issue of ethnic quality by saying
that national minorities cannot have the politistronger than the political
of
cal
nations. That is
there is so much of insistence on
issue whether Albanians
remain the minority at
level of Kosovo, at
the local level, etc.
then it is discrimination. But are Albanians a minority? 1think they
havenet been a minority when they were
annexed to Yugoslavia, nor they are today.
Definitions according to which all those who
are not the state-forming people are minorities
should not be accepted. 1would like to advocate the opinion that definition of a national
community as a
can (not) be viewed
through its
nctional ability, that is, by
assessing whether it indeed performs those
functions which one nations should perform. lf
we
Albanian
we shall see
that it performed its basic functions to realize
its determined national interests, although
the past decade it was absolutely discriminated and eliminated from the public life. Even
the schools were banned, and 1am
referring to
to primary and secondary shools, when the state stopped paying the teachers, even then Albanians manAugust 1999

approach
an approach
as a national comto the people similar to the other peothat the status which
ples. Secondly 1
Kosovo has had must be also taken into consideration. Attempts to impose on Albanins an
inferior or reduced status, with respect to the
earlier one, are absolutely unacceptable.
Consequently the topic of discussion cannot
be the paper which essentially means legalization of situation imposed on Kosovo, and
such is precisely the nature of
ilan
Milutinovices proposal. Such a situation and
constitutionai order, in our opinion, represent
constitutionalization of hegemony over
Albanians. That cannot be considered a document, although we want to have several documents.
1would like to expose briefly the
contents of an Albanian-elaborated document. That proposal contains the following:
Kosovo should accept to function as an associated entity, with an unspecified status, within the framework of Yugoslavia, with a position
equitable to other federal units. Such was the
status of Kosovo in the previous constitutional order. Such a solution would be valid for a
period of time, to see whether such a community can function. lf it functions it will be of
course accepted by all; if it does not, after
period of time, letes suppose three years,
Albanians and people of Kosovo should be
given the opportunity to decide the future fate
Kosovo at a referendum.

Yugoslavia, as well as on the whole

concept of federation. lf the crisis which
has manifested itself most tragically in
Kosovo (and before that
Bosnia,
Croatia, etc.) has at its root this
which does not justify at all chauvinisms
and separatisms of other nations and
parts of Yugoslavia-if that crisis is primarily the
crisis of constitution, the crisis of an internationally recognized state, then of course it
resoiving one
cannot be settled partially,
by one constitutional case" or region, but
must be viewed and resolved a as whole.
that context the acute and dramatic
Vojvodina issue is on the agenda, for it is
also a part of the crisisis of the disintegrated
state. By negating this fact the current status
and position of Vojvodina cannot be politically and internationally recognized, because it
would in fact mean the recognition of legitimacy of what has been abolished and
destroyed
the country by the denial of the
constitutional position of Vojvodina. By the
way that province boasts the langest experience in the struggle for the autonomous
rights-from the times of the Austro-Hungarian
empire to the most recent times.
Now 1shall briefly expose my views on the
comprehensive resolution of the Kosovo crisis. We heard Mr. Agani's discussion. 1believe
that the authentic Vojvodina democratic
forces (but we also have those Serbs
strong centralism orientations and convictions, as Vojvodina has at the very height of its
autonomy slowly turned into a region with the
Serb majority), believe that Kosovo deserves
such a constitutional and political status
which will above all respect all the original
rights of Kosovo Albanians and all the other
peoples living there. Secondly such a status
must be acceptable to all the truly democratic
forces both in Kosovo and in Serbia and
Yugoslavia. When 1 say democratic 1 most
certainly do not refer to those quasi-democratic parties and movements in Serbia which are
serving the regime and which say that
11
democracy must be first won in Serbia and
then resolution of problem of its autonomous
provinces tackled, and of Kosova8 obviously
to the extent it suits those forces.

1
think that the political process in the whole
both regarding the Kosovo issue
and the situation in Montenegro and
Vojvodina, has reached a point when the resolution of the Yugoslav political crisis must be
viewed as an eminently state-political but also
cardinal constitutional-political issue. Also
while resolving that issue major care should
be taken of the here emphasized aspects of
all the minority rights and individual civic
rights.
that sense 1 deem that our discussion, analysis and talks lack a more fundamental insight into that essential problem and
task. 1think that this major issue shouid be our
main topic.
Same Yugoslav and Balkan nationalisms
have escalated so much that they are charged
with highly lethal chauvinistic and genocidal
potential. They were and are the main generator of all dimensions of the comprehensive
and bloody crisis in the territory of the former
Yugoslavia. Hence the main political process
in that territory must be viewed and comprehended as a whole and not only from the
standpoint of strictly or exclusively civil and
human rights, that is- either by admitting that
they are violated or by denying that they are
being committed.
That process and all that has been happening here can be understood properly only
if the roots and motives behind such events
are properly understood. At the root of the crisis of the former Yugoslavia, AVNOJ and
other Yugoslavia (you can call it as you wish)
lie violent attacks of the zealous policy of the
Greater Serbian unitary hegemonism on the
principle of federalism as a historical achievement and not as the federal concept
expressed in the 1974 Constitution. lt was and
is a brutal attack on the achievements and
status of all constituent parts of the then

1country,

11

11

11

11

11

11

11

11

11

1
,

Helsinki Charter - Special Edition

Prerequisite for the successful outcome of

the Kosovo negotiating process is the following: a stable, internal consensus of all the ethnic groups
Kosovo, which is a major task
obligation of the Albanian democratic
forces Kosovo. The current Serbian regime,
spearheaded
forces which represent the
main cause of crisis and the pillars of the dicmanipulate in the
tatorship
this country
all the political differences
most
leaders
other ethhighly
Hence 1
friends and other
consensus as
soon as possible.
we
strive to
reach a
democratic
iasting consensus on Kosovo also
Serbia.
parties
Serbia
consensus, and unfortunately there is yet
to be established a front against that dictatorship.
the paper which Serbia has offered
is the part of that consensus We must quickform an alliance, bloc or front for the
defense of democracy in Serbia and strive to
unify all intellectually, morally and politically
relevant factors with a view to reaching the
consensus on Kosovo.
the latter effort we
must include all those wise Serbian individuals, who during a decade-long "multiparty sing le-minded ness11 based on the extreme
nationalistic-unitary platform, have been sidelined, hushed up, and satanized. (1 would like
to add that sidelined and stanized were all
those individuals and political groups of
democratic
leanings
who
opposed
Gazimestan-Cosi6 forces).

Finally 1think that the issue of radical constitutional reforms should be opened immediately in Yugoslavia. The Kosovo issue cannot
be resolved without enacting the deep constitutional reforms in the whole country.
Montenegro has to a great extent dealt with
that issue, resisting decisively the permanent
pressure and discrimination from Beigrade.
Hence concerted efforts should be made to
encourage the democratic forces in the counfocus on the creation
prerequisites for
elections of the constitutional assembly.
must fight to establish a different federation, which most certainly will not be composed
of two entities. Even if it has three
entities it must guarantee to Vojvodina and
Sandzak full autonomous and regional rights
in the state of Serbia, along with
involvement and additional guarantees of the international community.
As regards Vojvodina we, the truly democratic Vojvodina forces of all nationalities, in the
province have reached a poiitical consensus
and adopted the well-known Manifest for the
Autonomy of Vojvodina. But we still have not
reached a strong unity of action. Of course we
do not have the intention to engage in armed
struggle in order to win again the rights o
which we have brutally stripped. We only
need this republic in which we have lived for
decades, but we also badly need a different
republic of Serbia: a democratic and complex
state. The state which will recognize all individual and minority rights and which regionally must be a complex state construction, and
internationally the one which will establish
cooperation with Europe and the world.

roblem of minorities, even of the

one, is primari
the issue of
democracy and in our
efforts to resolve it we
should first turn this state into the legal state
and supplant the authoritarian system of govdemocratic
one.
ernment
the
Subsequently the elected and genuine representatives of the majority would then negoti-

ate with the representatives of minority a solution to the problem.

But we are trying to resolve this problem in

11

11

August 1999

a different fashion, by an alleged implementation of the right to seif-determination. 1 say

alleged because the force is used to implement it. That approach is totally contrary to
the one which call normal and which has
been explained by professors Sahovic and
A6imovi6. According to the normal principle
the issue of the right to self-determination is
resolved by agreement within the framework
of the authorized international institution,
namely the United Nations. Contents of this
right and general instructions on the implementation of this collective right of any people
are given in the
Declaration on Principles
of International Law Related to Friend
Relations and Cooperation of States in keeping with the UN Charter. lt is worth mentioning
that this Declaration is a codifying act of international law, and that it was adopted by consensus by the then members of the UN (in
1970) regardless of the fact that it was adopted as the of the General Assembly's resolution under number 2625/XXV.
But in the last ten years there were deviations from this practice, which 1deem the only
valid one. Deviations concerned the former
SFRY. The consequence of the collapse of the
"Berlin WaW was- 1 hope only temporarily- the
further sidelining of the UN. Hence the right to
self-determination of the Yugoslav peopies
(Croats, Slovenes, etc.) was attained in the
same fashion, but in more accelerated way,
as it had happened during he process of decolonization- in other words- by force. 1think
that the European Union, then cailed the
Community, and its member states blundered
when they took for granted different "referendums11 carried out in the territory of the former
Yugoslavia and the fait accompli of the armed
conflict. All of us who live here know well that
in the past fifty years every referendum and all
elections produced surprisingly the results
desired by the local authorities who legally
and factuaily controlled the population.
Considering the repression pursued by the
Yugoslav authorities, and also the fact that the
political group headed by Mr. Rugova in fact
controlled and 1 think still controls the
Albanian masses in Kosovo, that assessment
11

11

11

could also apply to the Kosovo referendum

held several years ago. No Kosovar Albanian,
oppressed by Mr. Milosevic and with no future
under his regime, would have dared vote
"againse independence for he would be banished from the community and labeled as
collaborationisf1 by friends and relatives. lt is
certain that the results of that referendum
reflected the
of the population at that
moment of time, but we shall all agree that
that the referendum was not held under normal conditions. that sense it was akin to referendums held in Croatia, Slovenia, etc. The
Western powers instead of stopping the war,
easing the tensions, delegating the matter to
and then organizing referendums, hastened to recognize independence of the new
states and the war continued.
there were
a lot of casualties, and not only Serbs, but
also Croats and Bosnians experienced terrible
plight.
the Kosovo case the West understood that the similar treatment of the issue
would not be a good one, and that is why they
strongly-and 1 believe-sincerely oppose the
secession of Kosovo and are bent on the
search for a solution within the existing
Yugoslavia. But, under the present conditions,
as Professor Nushi indicated, it
be very
difficult. No sensible person could believe that
this situation any solution is within our
reach. The West, personified by the
Ambassador
mediates, offers some solutions, but those solutions obviously are not
acceptable either to Kosovar Albanains or
Serbs, or more precisely to
Milosevic's
regime. As regards Serbs, nobody really
knows what the broad popualtion strata think.
And we shall know what Kosovar Albanians
and Serbs think only if the conditions under
which they can express their will become normal, that is, if a truly democratic government
is established, and the general situation in the
country is normalized. Even then, in view of
the mentality of the population, results of any
popular referendum will be reliable only if they
are carried out under the international control.
And in my mind that should be the
control.
Mr. Kovacevic told us that a democratic solution was possible. 1 agree with him. He, like
11

11

11

Helsinki Charter - Special Edition

11

any other sensible person, pleads for democratization.

how can a society be democratized when despite the truce conflicts continue Kosovo? Albanians and Serbs are getting killed. 1think it is obvious that Albanians
cannot achieve independence
the armed
struggle, above all because the West does not
want such an outcome.
To put it briefly, 1fear that in this situation,
no lasting solution is feasible, and that it can
be
a democratically organized
society. Judging
their speeches our colleagues
do
take
into account the fact
Albanians were
under the
totalitarian
mind-set is
under that totalitarian
spei!, hence
conclude
"the other
Hence the
should not be talked to, but, killed.
they come here
People from the West
seem like people coming from the other
dimension - 1am a great fan of the science-ficwhich different
tion novels, notably those
time and space continuums are mixed- and
people from the other
have trouble
adapting to the new and
can see for yourself that
Albanians, in fact
a limine, reject all Hill's plans. They are not
even trying
find any acceptable point in
them,
want independence and nothing
less. Similarly to
before 1 4- Unification
or Death!
Death destroys,
suffer,
get killed, go missing. Same time ago 1read
a paper about a Slovenian politician bragging
during his speech
Slovenia's independence was obtained at a cost
casualties. He was then
a woman
the auditorium,
it was cheap for
because his son had not
for
it
was
of
casualties. 1
ordinary
Serb or Albanian shares
. destroy
11

August 1999

his hause, kill his child and all 11 cradles of

Serbhood and all independent Kosovos 11
become a trifle, a worthless cause with
respect to the personal tragedy of an Albanian
or Serb. By extension few are those who are
ready to sit in a prison cell, or be abducted,
tortured for a "higher ideal 11 . 1 think the first
measure should be the uprooting of that totalitarian mind-set in all of us, but it seems that
the West cannot understand it. They do not
understand
our brain works, and we,
Albanians and Serbs, must understand that
our first task is to save human lives in order to
reach a compromise. Comrade Lenin said
lang time ago that every "compromise is rotten11. And we can see the results of his sevenyear lang uncompromising venture"disintegration and millions of casualties. Hitler
and Mussolini paid
their lives their abhorrence
compromise.
are also aware of
the extent of suffering experienced by
Germans and ltalians during their leaders
11

11

11

We know that an average Serb or Kosovar

Albanian, irrespective of what the fans of history, 11 cradles 11 or "independence 11 think, only
cares to live peacefully in his hause. He does
not want to be arrested or harassed at somebody's whim, nor to be levied heavy taxes. lf
he is guilty he wants to be tried by the just and
objective court under the law which applies to
all citizens. That is the reasoning of the universal declaration and of the entire system of
human rights and its goals. Without a democratic society in which the rights of all citizens
are equitably protected, without the understanding of the other as a normal man who
can and moreover must be talked to, little can
be done, let alone achieved. That is the gist of
the matter and only on such a basis the rights
of minorities can be built, and, why not, talks
on the right to self-determination held.
Without such a basis nothing can be

achieved.
11

11

These are probably unprofessional11 and external factors which

affect the issue of seif-determination of Kosovo on the one hand,
but they are also issues which
should also be resolved
the
self-determination of Kosovo, on the other
hand.
Regulation of relations with Serbia from the
internal aspect is probably the most difficult
problem. That is a direct issue of war and
peace, of further escalation of conflict or its
resolution. But this is not a black-and-white
problem. Added to the problem of the conflict
there is a series of currently latent problems
and conflicts which will to a !arge extent affect
not only societies
Serbia and Kosovo, but
also their future relations. The major problem
is surely the one of the economic and democratic transition
Serbia, which sooner or
later
take place, and in which Kosovo
play an important and active, if not a key role.
There is also a demographic problem almost
exclusively viewed from the phobic angle of
the circles from the Serbian Academy of
Sciences. Namely they predict that the next
century almost half of population of Serbia
be made up by Albanians.
other words the
future relations between Serbia and Kosovo
influence the future society of the citizens
of Serbia.
The aspect of definition of the rights and
interests of the Serbian citizens in Kosovo,
perhaps a marginal question for some, in fact
represents the key issue for the future democratic society in Kosovo. That aspect will
make the idea of prosperous Kosovo (and
even its right to self-determination) attractive.
Such an approach of positive discrimination is
of course not easy, and it primarily depends
on the feasibility of preservation of peace in
Kosovo as the key condition for holding any
public and democratic debate on a peaceful
and positive resolution of the Kosovo conflict.
The issue of Macedonia, although it looks
marginal, is in fact the strategic issue of
regional peace, which to a large extent should
concern the Western military and political factors. But the question is whether the indepen11

he current situation
the former
Yugoslavia is such that there are five independent states, but on different levels of
recognition. Slovenia has already successfully completed that process (barring a small
border dispute
lstria
Croatia); Croatia
is recognized
its borders, but some
parts of its territory are still under the international community's control, for example the
Eastern Slavonia and Prevlaka; Bosnia and
Herzegovina is the state with two legal and
three political entities functioning under the
SFOR control; Serbia and Montenegro make
up the self-proclaimed federation.
of its citizens and political factors do not have the
legal and democratic legality. There is a political and military control of the territory which
its citizens want to see independent and outside the FRY borders (Kosovo). Serbia and
Montenegro
are
not recognized
as
Yugoslavia by Washington. And finally there
is Macedonia troubled by the latent ethnic
tensions and by its symbolic name: the
Former Yugoslav Republic of Macedonia.
From this aspect the Kosovo issue represents the last episode in the process of final
disintegration of the former Yugoslavia, the
process which, without the resolution of the
said issue, will remain incompiete. The issue
of Kosovo should be viewed not only from all
those problematic angles, but also treated as
a purely constitutional, political, security and
democratic issue. The following problems
should be also tackled: regulation of Kosovo
relations with Serbia; definition of the rights
and interests of Serbs in Kosovo and thirdly,
self-determination of Kosovo and its possible
impact on the situation in Macedonia.
11

11

Helsinki Charter - Special Edition

dence of Kosovo in any shape or time, can

destabilize Macedonia. The answer to that
question is one of the key political factors
affecting the
to self-determination of
Kosovo.
fact the question should be: does the
resolution of the Kosovo issue satisfy
Albanians in Macedonia or it represents a
negative model, a precedent enabling them to
stake their claim
secession
and
precisely
most
be also reversed:
issue

Kosovo, which is in the interest of the majority

of Macedonia's citizens, can in fact create
problems
Macedonia itself?
From the political standpoint the issue of
self-determination of Kosovo can mean easing
of tensions and long-term stability of the
region if the very act of self-determination is
accompanied by a series of positive and additional measures, including the long-term stratintegration of the region on principles
regionalization. lf such selfdetermination is possibie, it could become a
model
the
resolution
problems in
Southern Balkans.

more.
explain
Canada, or it

does not explain what

damage
Canada
incur because of this kind of
divorce. 1think that many in this region share
self-determinaunderstanding
is important is the fact that
there are
serious understandings of selfdetermination which are at the service of the
ethnic basis of states. But precisely these
understandings or interpretations must be
, because
are related to to the
concept
the state sovereignty.
fact
still fight for self-deterindicates how much the idea
sovereignty of states based on
peace is still embedded in the
some nations. In my opinion we
extremes, that is, every politstrives to become a state, and
ethnic groups and

cannot say
if
remarks in

1utes,

August 1999

to the large communities like Kurds. The latter

cannot obtain self-determination firstly
because of the very existence of Turkey,
which is a very important factor of stability,
and secondly, because the Kurdish leadership is made up of radical communists. In my
opinion there are three main reasons for selfdetermination. The first one has to do with the
distributive injustice. lt occurs when an ethnic
group within a broader community cannot
exercise its elementary political rights, its
economy is neglected and the group is
stripped of its cultural identity. Then it is considered that such a group can claim the right
to self-determination. Secondly there is also
disagreement about what the political community really is, although some authors maintain that political communities exist irrespective of this disagreement. The second reason
is a historically corrective justice. lt was
applied in the case of Letonia, Lytvania and
Estonia. This is a very interesting example. 1
call this historically corrective justice for the
USSR had annexed those three small states 1
and thanks to the posterior break-up of the
Soviet Union they acquired their right to selfdetermination. The Kosovo case is akin to the
previous one, but not quite identical, because
Kosovo has never been a state. But if the
Soviet Union had not disintegrated, it is questionable whether their right to self-determination would have been realized. Hence all the
three aforementioned reasons are debatable.
1 am only trying to show how complex the
issue of self-determination is. However sometimes prerequisites or possibilities, rather than
justifications, are needed for self-determination. 1would like to indicate some. Size of territory and large/numerous population. For
example Naulu, a small Pacific island is a
state, but Scots, Basques, Kurds, Catalans do
not have their states. By extension San
Marino, Luxembourg and Andorra are states.
Sometimes the second reason for granting
self-determination is the economic one, that is
economic self-reliance. In the former
Yugoslavia we used to tease Montenegrins
that they could not survive without a Russian

steamboat loaded with wheat. lt made

Montenegrins angry, but it was a historical
fact. However any nation or ethnic group can
survive.
fact the internal regime is answerable for the poverty of those people. The third
condition is the aspect of security and it is
considered that any people who achieve selfdetermination must consequently ensure their
own defense and should not pose threat to
the others. We had such an example during
the disintegration of the former Yugoslavia.
Croatia demanded and was accorded selfdetermination, but it simultaneously, and similarly to Serbia, obstructed self-determination
of Bosnia and Herzegovina. The fourth condition is also very important one, namely, any
understanding of self-determination must be
based on the so-called internal democratic
arrangement. lf there is forcible physical separation between entities lacking the internal
democratic arrangements, the newlyemerged states are fated to become not only
empty creations, but also precarious and
unstable ones. 1must say that one of the more
important moment concerning conditions for
self-determination must be related to the
access to wider European and world integrations. In my opinion self-determination should
be viewed only through the possibility for
such an access. But the time is running out,
so 1would like to go back to our topic. 1think
that the Albanian people in Kosovo have the
right to self-determination. They have realized
that right in Albania, as the people living in
Serbia have realized that right in Serbia.
Albanians in Kosovo have the right to selfdetermination. But there is also the question
of borders and the rights of other peoples. In
other words it means that a compromise must
be made, and such a compromise must be
backed by the so-calied internal democratic
arrangement. But in my opinion it is not very
feasible, for the Albanian people and the
Serbian people in Kosovo are yet to become
not democratic peoples. Hence all the difficulties. And that is precisely why this problem will
encumber this region for a lang time to come.
Thank you very much.
Helsinki Charter - Special Edition

s lately 1have been spending more time in

forests, mountains, valleys and plains,
than with
computer, 1 fear more what is
happening in Kosovo and mostly the
prospects for a future solution of this problem.
That is why 1 shall try to concentrate on the
topic of legal framework of the status of
Kosovo in the
for 1think that this conference can give a concrete contribution to that
context. lt is important that this conference
instead of academic reasoning focuses on the
realistic practical issues. Hence 1am happy to
have heard today opinions which bring the
Kosovo situation closer to reality. In that context 1 would single out the expose of Mr.
Pribicevic, the second part of Mr. Simic's
expose and some other speeches which
focused not only on the legal norms, but also
on the genuine interests. Also praiseworthy
are some remarks, 1 think Mr. Obarodovic's
were best in that sense, that democratic institutions should be established
Kosovo. Of
course 1 would not like to overlook the fact
that there were professional-legal discussions, which almost by consensus, recognized to Albanians the right to self-determination, and in full observance of special conditions and circumstances even the right to
secession. Those discussions also encourage
me to give my contribution to the practical
articulation and hopefully rapprochement of
political attitudes which
respect the real
interest of all people living in Kosovo.
The Kosovo issue, being a specific problem with its genealogical authenticity, as Mr.
Simi6 and the others have put it, cannot be
August 1999

resolved through a comparative analysis of

models a !a Tyrol, the Alland islands, etc.
Unfortunately that problem cannot be either
resolved by respecting the constitutional and
legal basis of the FRY, which was and remains
the obstacle on the road to democratization.
That's what Azem Vlasi and the others said,
notably Zika Berisavljevic, who put it honestly
that a different organization of this state was
demanded. That such a change is needed is
shown even by the example of Montenegro. In
the current chaos the Serbian regime finds
means for both its survival and strengthening
of its position. That is the gist of the problem.
That would not be terrible if it belonged to the
past, but the paper that Mr. Agani mentioned,
follows precisely the road to resolution of the
Kosovo problem.
That is why it can easily happen that
instead of creation of democratic institutions
in Kosovo, that is instead of the solution of the
problem, the international community's
agreement, by sticking to the constitutional
and antidemocratic heritage of the FRY, might
soon encourage two antidemocratic solutions. In other words, instead of resolving one
problem, it will probably produce two problems. 1fear that two problems will be consolidated, and within that context 1 even foresee
the emergence of the third; Montenegro might
re-examine its relations within Federation and
as Mr. Berisavljevic has just said the same
scenario might happen in Vojvodina. That
might be causes by the fact that Milosevic-Hill
Agreement is of an interim character, and that
after the stipulated period, as confirmed by
Mr. Pribicevic, Albanians are not guaranteed
the right to determine their fate at a referendum. Consequently this agreement can, in my
opinion, unfortunately encourage an antidemocratic, nationalistic race in the next five

45

years; in that period some

keep
the FRY, and the
Kosovo
Serbia, that is
others press for Kosovo to search its development prospects beyond Serbia,
is the
FRY. Hence the conflicted sides this interim
to
is the
period are the least
real objective of the agreement- democratic
institutions, unless the agreement is amended
to some extent. fact 1foresee an even worse
scenario: the conflicted sides are most
to concentrate on other solutions.
nature of these solutions can be easily seen
now, Kosovo.
to
the aforementioned
deem that soiutions to
Kosovo issue
should be sought accordance
cipie
of borders, and
basis of antidemocratic, constitutional and
legal heritage of
FRY, and even iess so
proposing models
are far removed
from the reality of the Kosovo problem and
real interests of Kosovo citizens. Political and
legal contents of the agreement on the interim

status of Kosovo
serve as good basis
only if the solution is based on international
and standards and of course if Helsinki
principles are observed.
let us not aslo
forget the reason behind the FRY's suspended status
international institutions. The
issue of
of borders has
sense
if absolutely guarantees the respect for
human rights and fundamental freedoms; on
the contrary, it should have a relative sense
depending on the degree of
status of
vidual and collective rights of Albanians
in Kosovo. The now unrealistic rig
Albanians to independence, should
disputed
the international community
the future if armed conflicts and atrocities continued
Kosovo. On the contrary
respect
for
right of Albanians to the
selfdetermination
interim period could
serve as a starting point, as a realistic prerequisite for democratization of Kosovo, and primarily for democratization of Yugoslavia.

n recent months the European policy has

once again focused on Yugoslavia. This time
the issue that attracted the interest of international public opinion was the status of
Kosovo, which is
an autonomous
province
Serbia, one of the
Yugoslav
republics.
current context it seems
only another a series of ethnic issues which
were catapulted to the forefront
the postbipolar world, particularly the territory of the
former Yugoslavia. One of the results of the
end of cold war is the re-emergence of ethnic
conflcits in the areas which throughout histohave been renowned for problematic relationships between different ethnic groups. 1

Contrary to the predominant belief

those
issues
European practice were resolved
and reguiated
an adequate
international documents (the CSCE Final
problems of relations between different
nations have once again become pressing
issues of the European politics. The war
former Yugoslavia indicated
dangerous those problems could
International community engages itself
such situations order to establish peace, as
it is widely considered that ethnic conflicts
can endanger security. 2
fact such an
involvement of international community represents an effort to prevent the spill-over of cri-

Helsinki Charter - Special Edition

August 1999

turn created serious political problems.

Thirdly, in both cases it has always been clear
that at stake was the territorial identity, or to
put it more precisely, that claims for territorial
separation were made, as such separation
would create a framework inside which
national identity could be more easily preserved.
However one should not overlook some
very important, if not essential differences in
the development of those problems. One
should also bear in mind the general situation
in those two states and their geopolitical enviLinder the 1974 Yugoslav
ron ment.
Constitution Kosovo and Metohija were
accorded a far greater degree of autonomy
from the one accorded to South Tyrol.
Practically Kosovo had a Constitutional status
almost identical to the one of the republics in
the Yugoslav Federation. However in the
course of the years the rights of Autonomous
Province of Kosovo and Metohija were
restricted, particularly when in the late
Eighties constitutional amendments were
introduced. Those amendments had in fact
prompted developments which consequently
resulted in the recent escalation of conflicts.
On the other hand in the case of South Tyrol
there was a contrary trend, namely the one
towards the expansion of autonomous rights.
Today this region has a very basic autonomy
and rights which are defined at local, regional
and state level. That autonomy never equaled
the power which was wielded by bodies and
representatives of Kosovar Albanians within
the political system of the former Yugoslav
state. However one should also point out
another important fact. These two entities had
different status in their countries, but the political system of these two countries were different. The status of these two minorities lo a
great extent depended on the political systems of countries in which they were: in ltalyfrom the centralized state a~d in Yugoslavia
from the decentralized federation.
lt is also important to mention that the political milieus in which solutions were sought
were different. Although the problem of
Kosovo and Metohija emerged several

decades ago, solutions must be found now,

as the total situation in this part of the Balkans
is burdened by recent developments in the
former Yugoslavia. The solution for South
Tyrol was found in the peacetime.
Furthermore it is important to note that the
South Tyrol crisis was practically an international crisis: firstly, provisions which represented the basis for further efforts were an
integral part of the Paris Treaty (well-known
Gruber-De Gasperi Agreement) and ltaly has
undertaken the commitment to improve the
position of the German ethnic group; secondly Austria obtained the right to supervise
ltaly's treatment of the German-speaking
majority and was practically accorded the status of protector; thirdly, when this issue was
taken before the United Nations the organization adopted two resolutions demanding that
the two countries start negotiations on this
problem; fourthly, when in 1992 the ltalian
Parliament adopted the last law providing for
harmonization between legislation and the
provisions of the Statute on Autonomy, ltaly
and Austria exchanged diplomatic notes and
jointly informed the United Nations that they
considered this issue-settled. 5
The case of Kosovo is completely different.
This province has always been a kind of "gray
area and at the time of bipolarism did not represent the subject of international interest; furthermore Albania, unlike Austria, had never
had legal basis to interfere in situation in
Kosovo. Also as Albania was self-isoalted until
the end of the cold war, it did not show any
major interest in this matter; finally disputes
between the Serbian (Yugoslav) state and
Albanians in Kosovo have been by and large
treated as an internal issue until the moment
when the international community, in view of
the escalating crisis, began participating in
the process of peace-making. When the
Yugoslav state used force to suppress terrorist activities of the so-called Kosovo Liberation
Army and consequently threatened the lives
of many Kosovar civilians, the international
community, fearing the spill-over of this internal crisis and destabilization of a wider Balkan
region (and in view of a long-term crisis in the
11

Helsinki Charter - Special Edition

neighboring Albania) expressed its concern

and got involved in the process of solutionfinding. The Yugoslav government opposed
this interference of international community,
but under the strong international pressure
accepted a very direct deployment of international verificators in Kosovo.
the light of current developments it
should be pointed out that the conflict in
South Tyrol, despite a number of terrorist
actions, has never reached the degree of tension characteristic
Kosovo, nor has the
issue of South Tyrol ever represented a threat
to peace and security in the wider area.
lt is however worth remembering that the
solution-finding
the case of
iasted long.
the other hand for
almost a decade Kosovar Albanians have
been ignoring the official state administration
the
system
have organized
educational and health system. Kosovar Albanians have recently resorted to terrorism,
unfortunately those
actions taken by the so-called Kosovo
Liberation
escalated and provoked a
backlash of the Yugoslav police and
International pressure on the
Yugoslav authorities to
a part of their
military and police forces from the province,
as a part of peace-estabiishing process the
region, stopped large-scaie hostilies, but the
question remains whether this cease-fire
last
into peace.
any case it is
solution
after the
thanks
the Western
the solution to
implementation
was completed in the
new incentives to

August 1999

in the case of South Tyrol that was guaranteed by the Copenhagen Agreement.
Having all this in mind, it can be said that
the experience of South Tyrol was a good and
encouraging example as to what can be done
with respect to resolution of issues related to
status of national minorities. But at the same
time this example cannot be used as a model
for a general solution of interethnic conflicts,
particularly in the case of Kosovo. 7 South
Tyrol is an example how the political solution
and feeling (as well as the understanding) for
different or confronted demands could be
useful when such sensitive issues are on the
agenda. This example also shows that the
problem cannot be resolved neither by force,
nor by suppression or disregard. lt also
shows that in certain cases international
framework can be useful, not because international factor must or should impose solutions, but simply because in discussions a
mediator (or moderator) can be indeed effective in creating an atmosphere conducive to
making the opposed sides embark upon
negotiations.
However, in the case of Kosovo and
Metohija it is still necessary to create basic
prerequisites which would make the two sides
(the state authorities and representatives of
Kosovar Albanians) undertake the serious
negotiations. This was not possible in the past
years (even decades) and it is even more difficult to achieve now when the situation has
worsened because of armed actions of both
sides. On the other side the standpointof both
sides on modalities of possible solutions differ
almost all aspects. The state views the
entire problem as an internal issue of terrorism-curbing and is ready to negotiate only
some aspects of autonomy, while the
side demands
independence.
state was against international involvethat the international engagement was of key importance
the accomplishment
its goals.
referendum at
in this, as otten
rejected, it
international

factor it would be difficult to achieve any positive step forward. lt is true that the large-scale
hostilities stopped only after strong international pressure was piled and threats of
tary intervention were voiced.
Now, in the wake of Milosevic-Holbrooke
Agreement the international community
should assume
responsibility and carry
out its engagement in an adequate and efficient way. To achieve that it is first necessary
to find a solution embracing the political and
legal aspects of situation, together
the
observance of international norms. The first
task is to create an atmosphere propitious for
the participation of both sides,
or
the participation of the third side as a mediator. The second task is to set a goal acceptable and feasible at both international and
local level. The
task is to protect basic
human rights of all inhabitants of Kosovo, irrespective of their ethnicity. lt is also of paramount importance that the international community
this situation demonstrates to both
sides its impartiality. Bad experiences from
the civil war
the territory of the former
illustrated
sensitive
Yugoslavia
those issues were. However, whatever looks
like insurmountable difference can be overcome in the course of a lang and patient
process
which both sides
become
aware of what separates them and what is
possible under the existing circumstances. Of
course it easy to prescribe the best medicine
and that is - to find way for rapprochement.
But it is much more difficult to predict what its
effects will be like.

eruption of violent ethnic conflicts .. They say

that,
recently, they considered ethnicity
as something that characterized traditional
societies
limited communications;
Marxists thought that socialism would bring
an end to ethnic tensions,
the civil sociologists thought that industrialization and
modernization would uproot them.
2. Stephen Ewan Griffiths, Nationalism and
Ethnic Conflict: Threats to European Security,
SIPRI, Oxford University Press,
136.
3. Institute for International Politics and
Economy of Beigrade organized a roundtable and published a special issue of its magazine, MecJunarodni problemi 3-4/1992,
texts on different experiences of European
countries the resolution of inter-ethnic problems and status of ethnic minorities (cases
Belgium, Great Britain, Spain,
Finland,
Russia, Switzerland).
4 Nina Dobrkovic, South
- Model for
Resolution of Status of National Minorities? 11 ,
MecJunarodni problemi, 3-4, 1992, 272-284.
5
Osterreichische
aussenpoiitische
SudtirolDokumentation,
Sondedruck
Dokumentation,
Bundesministerium
r
auswartige Angelegenheiten,
1992, s.
5, 76, 88.
6. Michael Filer, South Tyrol-model for the
resolution of the minorities conflicts? Branko
Milinkovic, Sanja Milinkovic. Eds. Nacionalne
manjine u mecJunarodnom i jugoslvoenskom
pravnom poretku, Medunarodn politika,
Sluzbeni list SRJ, Pravni fakultet, Fakultet politickih nauka, Institut ekonomskih nauka,
Institut za meduanrodnu politiku i privredu,
Beograd 1997, page. 367-380.
7. Nina Dobrkovic, lskustvo Juznog Tirola i
1 Rita Jalali, Seymour
Lipset: Racial resavanje polozaja nacionalnih manjina, 11
and Ethnic Conflict1', Political Science
Poloiaj manjina u Saveznoj Republici
Jugos/aviji, Srpska akademija nauka i umetQuarterly, Winter 1992-93, p. 585-606.
nosti, Beograd 1996, p. 475-482.
Authors emphasize that many are suprised by
11

11

11

11

11

Helsinki Charter - Special Edition

he
crisis has entered its final stage
and judging by rhetoric it threatens to end
a
chaos and possibly engulf the
whole region. The agony of the political scene
Serbia is now
characterized
accusations
scapegoating for
all the defeats so far. The opposition blames
Milosevi6, and he in turn blames the international community, primarily the US and the
The absolute misunderstanding of the
state and national interest by all protagonists
drags Serbia even deeper into isolation and
The Kosovo issue which has homogenized the Serbian public at !arge for two
decades
led Serbia astray and made it
Yugoslav peoples and the
a single Serbian politician,
whole world.
not even Slobodan Milosevi6, at this moment
dares to tackle the Kosovo issue in the right
such a move might
survival.
this moment
endanger his
Kosovo issue
mates the entire
Serbian frustration and failure
achieve its
war objectives, above all the expansion of the
state
northwest.
the Eighties Kosovo
Serbian elite as a lost
posterior efforts centered
lass
province.
announced
October 1998:

August 1999

The impotence of the Serbian politicians to

get out of its own trap is best illustrated by the
unrelenting propaganda against Albanians
and also against the current Montenegrin
regime and the whole world. lrrationality of the
decade-long process of destruction does not
promise sudden, rational turnarounds.
Absence of any resistance and acceptance of
the situation marginalized individual, isolated
efforts aimed at making the broader population strata come to their senses. Vulgarization
of the public life and conspiratorial silence on
the subject of war crimes made the Serbian
society impervious for any changes, notably
those of democratic nature. The Public
Information Law in a short period of time laid
bare the media scene and demonstrated that
there were no independent media, particularly in the treatment of the Kosovo issue.
Ten-year lang repression against Kosovar
Albanians, mass killings of civilians, notably
children, warnen and the elderly as the retribution for attacks on the local policemen additionally discredited
the moral sense the
Serbian pretensions rule Kosovo. The political momentum created after the HolbrookeMilosevi6 Agreement is lost, and the international community is once again flabbergasted
the
of atrocities. The final outcome
crisis is unpredictable partly
areas with Macedonia
been
mined and
and Albania
partly due the strong presence of the army
continuous
the province.
and now even in

Pristina indicates a possibly dramatic denouement. In other words the logic 11 what is not
mine, will not be yours, like the one in
Chechenia, can easily prevail and ultimately
devastate Kosovo.
Expectations that the armed conflicts will
be renewed in spring have obsiouvsly put to
sleep all international protagonists. Hesitation
of the international community to take adequate measures or its propensity to take them
belatedly, have to date always created a
maneuvering space for Slobodan Milosevic to
disparage and humiliate the whole international order by his unpredictable behaviour.
His capacity to remain the 11 only11 negotiator is
more the result of his adroitness and brazenness than of his real power. That at the same
time indicates that the domestic scene is
exhausted and the international community
lacks the vision and the nerve to take a decisive action.
As the international community failed to
resolve the Kosovo issue the Albanian side in
the meantime lost patience. lnevitable political
differences have also emerged among the
Kosovar Albanian politicians, whereby the
radical wing received wide backing. The
Kosovar rebellion in the wake of the Drenica
event promoted the KLA and made it a decisive factor in the resolution of the Kosovo crisis. Radicalization of the Albanian scene
enabled Slobodan Milosevic and the Serbian
side to increasingly present their actions as
the fight against terrorism. At the same time
international community, notably Europeans,
have been increasingly putting a negative
spin on Kosovar Albanians, for example
depicting them as the organized Mafia etc.
The UN Special Rapporteur for the former
Yugoslavia, Dinsbir, contributed significantly
to such negative media hype. Relativization
and equalizing of both sides can help the
Serbian side only for a short period of time.
Objectively speaking any procrastination in
solution-finding process will harm Serbia,
which is on the brink of disarray. The social
implosion does not augur weil for any
changes or recovery.
lt is not clear why international society even
11

11

11

11

11

after ten years allows to be sucked into the

Balkan hell. lt seems that the malaise of the
Serbian society has not been properly diagnosed. The absence of the global approach
and persistent equalizing of the sides in the
conflict has prevented the right insight into the
deep social changes in Serbia. The essence
of the Serbian nationalism is the fact that it
views national togetherness not as a political
sphere, but as a predestined togetherness
(ethnic identity). Serbs considered Yugoslavia
as an expanded Serbia. After the collapse of
communism they did not turn to a democratic
transformation indicated in the 1974
Constitution (equality of all peoples) but
instead tried to create the Serb-dominated
Yugoslavia.
that attempt Serbs lacked the
economic and cultural superiority to underpin
three pretensions. They relied only on the
armed forces and the backing of Russia, and
the Yugoslav National Army has always been
predominately Serbian and pro-Russian.
The late Eightees 11Anti-bureaucratic revolution11 was an authentic political revolution. lts
basic postulates were anti-market and antidemocratic orientation. A decade-long experience showed that Serbs are against the multiyparty system and that today we have in
Serbia a kind of one-party pluralism. The
Serbian national project made the country
regress to nationalism and distanced it from
the European and the world processes.
National homogenization based on a myth
(not only the Kosovo one) still dominates in
Serbia. lt designates our society as a closed
mental world incapable of pondering its
defeats or future. Such irrationality demonstrates the immaturity of the nation and it incapability to face its recent past (war crimes,
ethnic-cleansing).
Slobodan Milosevic's name will be mentioned in history books due to several reasons. He
be responsible for the fundamental emptying out of the Kosovo myth in
the minds of Serbs, for cutting Serbia down to
size, for destruction of the myth of the
Yugoslav National Army, as the invicible army
and devaluation of the Serbia military code.
Owing to a set of circumstances he continuHelsinki Charter - Special Edition

new situations and created precedents

ual changes. After the signing of the interim

solution, now it seems that it is necessary to
convene an international conference on a lasting solution, similar
the
one, then
implement the regional, mini-Marshall plan
and a mandatory security framework for the
the only way to
whole region. That would
prevent the regional sidelining and enable a
gradual integration of the whole region into
the European structures.
enormous potential for destruction and
auto-destruction of the Serbian entity shouid
not be overlooked particularly at the moment
a decade -long failed policy is
presented. Hence the maneuvers
the
war propaganda and threats of military
responses to
intervention should
not be disregarded.
the same
rumors
possible deals that is recompense
Republika
deals are allegedcircles. lf such
11

11

11

11

August 1999

Balkans
be to curb the
Balkan ethnic nationalism and to de-nazify the
region, and particularly the Serbian people.

tanding by the side of the

road, Skender Krasniqi's
voice shakes with anger as he
points to the grassy ditch where Kosovo Albanians
believe Serb police dumped the body of one of
most respected leaders.
found who
make
pay", Krasniqi says. 11 / am just a business man,
it
doesn 't matter. They had no
Agani.
campaign has
Perhaps no single crime attributed to Yugos!av forces during the 78-day
sparked such pain and anger as the
6 killing of the professor a deputy to moderate leader
Rugova and a key figure in efforts to resolve the Kosovo conflict before it exploded into vio!ence.
Agani's younger son,
37, accompanied his father in the last days of his
Speaking to the
Associated Press
a cafe
Tetovo, Macedonia, a!ong
his
Agani recounted the
events that led to his father's death.
Fehmi Agani died as
had
As he tossed oft his disguise to draw
attention of Serb police away
a group of young
men
were
elder Agani
reassured his son:
not kill Rugova,
hey won't
those men either, because I
be a witness. 11
After failed negotiations
France in
said, it was already
clear that a NATO attack against Yugoslavia was
Fehmi Agani, a leading member of the Kosovo Albanian delegation, decidet to return home, to
Kosovo capital Prishtina. His family, tearing for his safety, was disappointed.
asked
come back?' 11 his son said. 11 But he was very displeased with this question.
want to
about
On the night
24,
launched its first attack. Father and son set
on the balcony
sipSping tea, smoking cigarettes and watching
the bombs fall.
was like the movies",
said, recal!ing how his father laughed at
U.S. pilots entering Yugoslav airspace
visas. He joked that the U.S. F-18 fighter planes, known as
11
Hornets 11 , were coming to sting the Serbs.
As the allied attack increased the following week, the Serbs stepped up retaliation against
ethnic
Albanians. They entered
Agani's neighborhood and began beating people, forcing
out of
city, then !ooting and
homes.
At that point, the Aganis went into
11
we
People were coming
to
in
street
asking
'Professor,
11
whatever
terrible, his
was not good. He
is best.
York-based
spokesman and the
'the days that followed, Agani was reported dead. Both
on his way home
a
Human Rights Watch cited reports
Agani had been
hause to hause, relative to re!aBut Agani, along with his son and his wife Sadrija, was moving
11

11

11

tive, making his way to the outskirts of Pristina.

Helsinki Charter - Special Edition

IN MEMORIAM
He knew the Serbs were looking for him, as Rugova was a/ready in their hands 11, said Mentor. 11But
until the 6th day of May, my father wasn 't in the mood to /eave. 11
When Rugova was allowed to /eave for ltaly on May 5, Agani told his son:
11
11
/ need to leave. I can do a Jot for my people now.
On May 6, the Agani family rase at 4:30 a.m., dressed in shawls and heavy coats to hide their features
- especially Agani's snow-white hair - and wa/ked five miles to the nearest train station at Kosovo Po/je.
The train, packed with hundreds of frightened ethnic Albanians, fett for Skopje, Macedonia, on schedule at 7:00 a.m.
When they reached the last station in Yugos/avia, Serb soldiers boarded the train and told them the
border was closed. For three hours they waited, trapped in the carriages until 1:00 p.m., when the train
turned back toward Pristina.
Just before Kosovo Po/je, the train pulled to a halt at a village station beside an open field. Same 4050 policemen ordered everyone out.
11
They ordered us to sit in a field, and then they began with psychological torture 11, Mentor said. 11 They
circled around us, swearing and shouting threats. 11
Then, two Serb soldiers with guns separated about 15-20 young men from the crawd and lined them
up in front of them, as though they wou/d be executed.
11
'You've got 1O minutes Jett in your lives' 11, Mentor said the police shouted at the young men. 'Then
they (the police) started screaming 'Clinton! Blair! Where are you now?' 11
Agani sat alongside the others in the open, grassy fie/d, watching.
Than the police said they wou/d kill the young Albanians, dress their corpses in KLA uniforms and film
them as proof that all Albanians are torrorists 11, Mentor recalled.
At that moment, the e/der Agani thrust his small address book at his son and took oft his shawl.
11
What are you doing? 11 Mentor asked him. His father told him not to worry.
He rase, his hands clutching his Jower back. Police Jooked his way. Fehmi Agani was one of the best
known ethnic Albanians in Kosovo. Police had no trauble recognizing him.
11
He revealed himself in an attempt to save those kids 11 , said Agani's son.
During all his life, Fehmi was never Fehmi Agani so much as in that moment.
After a few minutes, Mentor said, police ordered the young Albanians back into the crowd and walked
away. As they did, one muttered under his breath, 11 Look, thete 's the guy who brought NATO on our neck. 11
Three buses arrived and the Albanians were ordered to board them. As Agani was getting on board,
a soldier appraached and tapped him on the shoulder. 11 He said, 'Mister, cou/d / speak with you for five
minutes?' then led him away11 , Mentor said.
The soldier put Agani in the back seat of an unmarked car and got behind the whee/. lt was 5:25 p.m.
Sadrija tried to get oft the bus, saying 11 / have to go to my husband. 11 Serb police pushed her back on.
She and Mentor stood watching the black car.
At 5:34 they... started the engine 11, Mentor said, checkinh his knuckles.
11
They tirned and went oft in the direction of Lipljan. That was the last time J saw my father. 11
Local police found Agani's body May 7 in a ditch beside a dirtroad that leads from a Serb village near
here. The Yugoslav news agency Tanjug c/aimed he was murdered by KLA because of his efforts to reconci/e Serbs and ethnic Albanians.
Three days later, Fehmi Agani was burried in the Pristina cemetery, following a small ceremony attended only by his wife, his sister, his niece and his elder son 's mother-in-law.
According to Sadrija, Agani had been shot three times in the head; once in the forehead, once above
and once behind his Jett eat. His body had not been mutilated and there were no signs of torture.
11
He was killed by prafessionals 11, she said. 11 They just wanted to finish the job. They just wanted him
dead. 11
Associated Press, June 27, 1999
11

August 1999

55

'"I

th e
Name

ofl}J ll

tJJ

JJ

J 1 )'

Hcl1inki

Commill~

for Human Riahts in Scrbia

RADICALISA TION
OF THE SERBIAN
SOCIETY
- PRILOZI 1 DOKUMENT! COLLECTION OF
DOCUMENTS

Bd8Jlldc,Oeccmbcr 1997.

Kosovo:
pravo !
politika

All publications
the office of the
Imaj Jo :
tel
e-mail: