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South Slavic: April 27, 2000

27 April 2000, Volume 2, Number 16

The Future Status Of Kosovo. Part I.

In today's Radio Most (Bridge), we are going to discuss the future legal and political status of Kosovo. Our participants are Radoslav Stojanovic, professor of the Belgrade Faculty of Law, and Asim Bajrami, assistant professor of the Pristina Faculty of Law. Part II will appear on 4 May.

Omer Karabeg: The head of the provisional international administration in Kosovo, Bernard Kouchner, recently proposed to the UN Security Council that a provisional constitution of Kosovo be adopted. You, Mr. Stojanovic, claim that the basis for the transitional constitution was defined by the [February 1999] Rambouillet agreement, and that according to that agreement the autonomy of Kosovo is not supposed to be as broad as it was under the 1974 Constitution. What makes you think so?

Radoslav Stojanovic: Paragraph 11 of UN Security Council Resolution 1244 says that a permanent solution for the autonomy of Kosovo should be found bearing in mind Annex 2 of the Rambouillet agreement. Kouchner's suggestion that the constitution should be adopted is based on that premise. If the provisional constitution of Kosovo is adopted in accordance with the Rambouillet agreement, then the autonomy of Kosovo based on the 1974 Constitution was broader. I am also certain that Kosovo was less integrated in Serbia then than it would be under Rambouillet.

Why is it so? Because, according to the 1974 Constitution, Kosovo was a state within a state. On the federal level, Kosovo had the right to veto decisions in the House of Republics and Provinces of the federal parliament. When a territorial unit of a state has the right of veto, then it is practically a state within a state, since decisions are made not in a federal institution such as the federal parliament, but in Kosovo.....

Asim Bajrami: Mr. Kouchner's demand that the so-called provisional constitution of Kosovo be adopted was prompted by the idea that the general stipulations of Resolution 1244 should be expanded upon. As far as the Rambouillet agreement is concerned, I do not think it is a valid document since it was not signed, and it is well known who did not sign.

One more thing should be made clear. Both Resolution 1244 and the Rambouillet constitution mention only the provisional status of Kosovo. Nevertheless, there is a clause at the end of the Rambouillet agreement explicitly saying that the ultimate solution for the status of Kosovo will be found through an international mechanism [sic], bearing in mind the freely-expressed will of the citizens--which means a referendum for the people of Kosovo.

Therefore, Resolution 1244 and the Rambouillet agreement foresee a provisional solution, while the final one can only be reached in a democratic manner. That means through the freely expressed will of the people of Kosovo in a referendum that can be organized and controlled only by the international community.

Radoslav Stojanovic: We must not forget what is written in the documents. Here I have Resolution 1244, and this is what it says in the part discussing the constitutional arrangement: "...taking full account of Annex 2 of the Rambouillet agreement." The Rambouillet agreement was not signed, but if the UN resolution refers to Rambouillet, then it is a valid document regardless of the fact that it was not signed. This is because Resolution 1244 was adopted on the basis of the paragraph 7 of the UN Charter, meaning that it is binding. As far as the referendum is concerned, let us, please, Mr. Bajrami, be accurate. The Rambouillet agreement foresees a referendum, but it is not mentioned by the Resolution 1244.

Asim Bajrami: The Rambouillet documents should be studied in their entirety. This is how the negotiation process was planned and one cannot study parts of it separately. And the clause that the final, legally-binding solution for Kosovo is to be found by a referendum is a part of the Rambouillet agreement.

Radoslav Stojanovic: That is written in the Rambouillet agreement but not in Resolution 1244.

Asim Bajrami: Resolution 1244 refers to the Rambouillet agreement twice, and the clause about referendum is a part of the agreement.

Radoslav Stojanovic: I do not deny that. But Resolution 1244 does not mention the referendum, although it refers to the Rambouillet agreement. Therefore, one can refer to the agreement.

Asim Bajrami: I think that Kouchner's initiative is aimed at defining some general principles of Resolution 1244. The international community is aware of what has caused the Kosovo crisis, and that cause will not be eliminated until a democratic solution for Kosovo is found. I think that some general principles set down in the resolution should be clarified before the elections. After the elections, institutions should be created in Kosovo and on a local level that will start the process of defining the permanent status of Kosovo democratically.

Radoslav Stojanovic: Democracy is not a word, democracy is a process, a procedure. I do not know why you do not like what is written in Resolution 1244--that the constitutional solution for Kosovo will be found taking account of the Rambouillet agreement. I do not know why you are against it, since the Rambouillet agreement includes a constitution that, I think, is very modern. That means that the constitution is democratic since it foresees a decentralized community with well-developed local autonomy where the free circulation of capital, commodities, services, and people is guaranteed.

Therefore, that constitution has all the elements of a modern constitutional order of a democratic society. I would sign right now everything that is written in that constitution, not only concerning Kosovo, but also concerning Serbia. If you do not accept that the Rambouillet constitution foresees a democratic solution for Kosovo, then we can hardly ever agree.

Tell me, what other principles should be applied? If you allow me to say so, I too have read what Kouchner wants. He demands that what is written in the Security Council's Resolution be put into practice, referring to the Rambouillet agreement, as written in the Resolution. It is true that the Rambouillet agreement was not signed, but it is a valid document thanks to the clauses to which Resolution 1244 refers. Many people in Serbia do not like that fact, either.

Asim Bajrami: Mr. Stojanovic, have you read the Rambouillet agreement?

Radoslav Stojanovic: I have it in front of me.

Asim Bajrami: Have you noticed that what is written there is "the provisional constitution of Kosovo?"

Radoslav Stojanovic: I have never denied it.

Asim Bajrami: Do you deny the fact that there is a clause about a referendum?

Radoslav Stojanovic: No, but it does not exist in the Resolution 1244.

Asim Bajrami: But it does exist in the Rambouillet agreement.

Radoslav Stojanovic: Yes, it does and Resolution 1244 refers to it.

Asim Bajrami: You do not deny that the political atmosphere in Kosovo during the writing of the Rambouillet agreement was different than it is now?

Radoslav Stojanovic: I know that the situation now is much worse than it was before Rambouillet.

Asim Bajrami: You see, this is why Kosovo does not need provisional solutions anymore.

Radoslav Stojanovic: You can think whatever you want, but what I am talking about here is what is written in a document adopted by the Security Council on the basis of the paragraph 7 of the UN Chapter, which is binding for all the states. But, if you are asking me what I expect, I do expect peace to be established and conditions to be made for a future understanding among the peoples who live in this region.

Asim Bajrami: I fully agree with you, but can we achieve it by dealing with [only] the consequences of the crisis, or by facing up to the cause? And we know what caused the crisis in Kosovo. The cause goes back to 1989, when the constitutional system was dissolved in an unconstitutional manner. The cause lies in the ten years of occupation of Kosovo. If we want to establish a new order and new relations, then things should be resolved in a principled manner. That means that the question of the status of Kosovo should be determined by the freely expressed will of the citizens of Kosovo and of the peoples of Kosovo. Any other way would only prolong the crisis.

Radoslav Stojanovic: Let us not talk about what happened in 1989. I could also quote you a person of authority, the former U.S. ambassador to Yugoslavia, Warren Zimmerman, from his book in which he recalls one of his talks with Ibrahim Rugova. Zimmerman says that he asked Rugova what happened to the Kosovo Serbs between 1971 and 1989, when the Albanians had full authority over Kosovo. Rugova said: "Many crimes were committed against the Serbs."

Take the book and read it. If we start going back in the past in order to accuse each other, we will never reach a solution. For that reason, the international community and the big powers have taken the whole thing into their own hands. Unfortunately, our entire history is like that. When Serbs ruled Kosovo, they oppressed Albanians. When Albanians ruled Kosovo, they oppressed Serbs. We ought to overcome that.

Asim Bajrami: Let's not talk about history. We should not quote other people's words. We should get down to brass tacks. Mr. Stojanovic is a legal expert and he knows what Kosovo's constitutional position is. He knows how Yugoslavia fell apart. He knows that Kosovo wound up as an autonomous subject as a result of this process since it was a constitutional part of the [former] federation. He knows very well that the Albanian people tried to implement that right in a peaceful manner, he knows very well what they had to endure because of [their efforts].

All the legal, historic, ethnic, and cultural arguments speak in favor of the independence of Kosovo. The status of Kosovo, however, should be decided by the citizens of Kosovo. A solution should not be imposed from abroad. The international community should not try to impose the solution either since every imposed solution is doomed to failure. Democratic institutions should be created in Kosovo as soon as possible, and all the citizens of Kosovo should be involved, regardless of their nationality. Then the process of finding a solution for the status of Kosovo should start. Any other approach will make the crisis permanent instead of solving it.

Radoslav Stojanovic: The way your are talking right now is the way a Serb might argue as well--that Kosovo is a Serbian land, that things cannot go on the same way any more, etc. I wanted us to talk here as legal experts, to discuss the status of Kosovo. What I am telling you is, whether we want it or not, the solution has already been imposed. But, if you keep ignoring Resolution 1244Š

Asim Bajrami: No, I am not ignoring it at all.

Radoslav Stojanovic: What makes you say, then, that the solution cannot be imposed? Of course it can.

Asim Bajrami: Resolution 1244 is a provisional one.

Radoslav Stojanovic: That is not correct. Until the Security Council abolishes it, you cannot do so. If the Security Council adopts a Resolution, you cannot say: "You are imposing it on us." You have to accept it--and very much so.

Asim Bajrami: Let us make things clear here. The resolution of the Security Council has established the civil and military authorities in Kosovo. Those authorities seek to stabilize the situation in Kosovo, creating democratic institutions and a democratic political atmosphere in which the process of resolving the status of Kosovo is supposed to unfold.

Radoslav Stojanovic: The creation of democratic institutions cannot start in Kouchner's or any other person's head. It is clearly written in the Resolution: "...taking full account of the Annex 2 of the Rambouillet agreement."

Asim Bajrami: I think that referring to the Rambouillet agreement in the first place means referring to the mechanism foreseen by that document for the establishment of the permanent status of Kosovo, i.e. legitimizing the democratic process that will bring about that change.

Radoslav Stojanovic: A democratic process cannot be based on someone saying at a conference that the democratic institutions of Kosovo should be like this or like that. There has to be a document, whether we call it constitution or not. In the Rambouillet agreement, it is called a constitution.

Asim Bajrami: A provisional constitution.

Radoslav Stojanovic: No, "provisional" is not mentioned.

Asim Bajrami: Yes, it is.

Radoslav Stojanovic: I have the text of the agreement in my hands. What is written there is only "constitution".

Asim Bajrami: Then you do not have the final version, you do not have the [authoritative] document.

Radoslav Stojanovic: I have the most [authoritative] version. [Ed.: In the version included in the book on Kosovo by the international community's Wolfgang Petritsch, Chapter I is entitled "Constitution," while the text subsequently refers to the "interim constitution."]

Asim Bajrami: You cannot consider the Rambouillet constitution separately. The agreement must be considered in its entirety.

Radoslav Stojanovic: I am not denying that according to the Rambouillet agreement, the future of Kosovo should be decided by a referendum.

Asim Bajrami: That is my point.