SERBIA AND MONTENEGRO - AND KOSOVO?

By JOANNE MARINER

Monday, Mar. 18, 2002

Although Yugoslavia entered its death throes more than a decade ago, it was not until last Thursday that the country's formal demise was assured. The leaders of Serbia and Montenegro, Yugoslavia's two remaining constituent republics, signed an agreement in Belgrade that charts out a landmark legal reform of their relationship and signals the official end of the state of Yugoslavia.

Ethnic Albanian representatives from Kosovo, which remains technically part of Yugoslavia, played no part in the negotiations. Indeed, given their insistence on independence, it would have been difficult for them to consider participating, as to have done so would have amounted to recognizing Kosovo's relationship to Serbia. The official U.N. line, moreover, was that the agreement between Serbia and Montenegro would have no connection whatsoever to the future status of Kosovo.

But this official reluctance to acknowledge the obvious fooled no one. The question of Kosovo's future status was clearly of more than passing relevance to the Belgrade negotiations. It is likely, in fact, that concern over future developments in the region, and particularly in Kosovo, was the critical factor in bringing international pressure to bear on the negotiations between Serbia and Montenegro, and thus in shaping the negotiations' final results.

Disintegration or Confederation

Even though it officially dissolves the Yugoslav state, the Belgrade agreement should be recognized as a step away from the disintegration that has characterized the Balkans over the past decade. Instead of secession and full independence, the other alternative contemplated by Montenegrins, the agreement sets out the blueprint of a loose confederation.

Montenegro's secession, had it occurred, would have encouraged the continued fragmentation of the territories of the former Yugoslavia along ethnic lines. Not only would it have strengthened the Kosovar Albanians' demands for independence, it might have reinforced separatist aspirations among ethnic Albanians in Macedonia.

In assessing the new agreement, Kosovar Albanians will be tempted to maintain that Serbia's relationship with Montenegro does not concern them. They may even argue, alternatively, that the official dissolution of Yugoslavia implies Kosovo's full independence. Still, it is difficult not to recognize that the successful resolution of Montenegro's relationship with Serbia sets an important precedent for a similar determination of Kosovo's status.

Serbia and Montenegro

Of the six republics that formerly belonged to Yugoslavia, tiny Montenegro is the last to have sought independence. While Kosovar Albanians have a long history of separatist struggle, the Montenegrin independence effort only took off in 1997, when Montenegrin leader Milo Djukanovic began campaigning against the domination of Yugoslavia's then-President Slobodan Milosevic.

During NATO's armed intervention in Kosovo in 1999, Montenegrins' drive toward independence received international encouragement and support. NATO member states, in particular, welcomed Djukanovic's campaign as a means of undermining Milosevic. (Unsurprisingly, Kosovar Albanians also spoke up loudly in support of Montenegrin independence.)

But with Milosevic's departure from power in October 2000, the mood of the international community shifted. Since only about half of Montenegro's citizens are believed to be in favor of independence, while the other half support continued association with Serbia, Western governments worried about the possibility of civil strife in Montenegro itself. They were also deeply concerned about the regional impact of Montenegro's secession from Yugoslavia.

Thus, instead of acceding to Djukanovic's wish to hold a referendum on independence, the European Union put heavy pressure on both Montenegro and Serbia to hold negotiations. The negotiations themselves were brokered personally by Javier Solana, the EU's foreign policy chief.

The resulting agreement, which will come into effect after it is ratified by the federal parliament and the parliaments of the two republics, establishes an extremely loose confederation. Essentially two separate entities linked by a common foreign and defense policy and a few governmental institutions, the new state of Serbia and Montenegro is expected to come into existence in June. After three years, moreover, each constituent state will have the option of withdrawing from the union.

Kosovo

Governed as a province of Serbia until the end of the NATO bombing campaign in 1999, Kosovo remains technically part of Yugoslavia. Essentially an international protectorate, it is being administered under a U.N. Security Council resolution that specifically reaffirms the "territorial integrity" of Yugoslavia, even though the Yugoslav government has no effective power in the province.

With a population of some 2 million, Kosovo is largely Albanian. Only about 100,000 Serbs remain in Kosovo, and members of the two ethnic groups have a deep and enduring antipathy toward each other. Well over 150,000 Serbs fled the province after the U.N. took over, many fearing for their lives. Because of the extremely precarious security situation for Serbs in Kosovo, only a few hundred have since returned. Virtually all Serbs in Kosovo oppose independence, while virtually all ethnic Albanians support it.

Consistent with the Security Council resolution, which calls for Kosovo to enjoy "substantial autonomy and meaningful self-administration," the U.N. has been gradually shifting governmental responsibilities to local authorities. Last November, the party of the ethnic Albanian leader Ibrahim Rugova won Kosovo's first parliamentary elections in twelve years, and in early March 2002 Rugova was elected Kosovo's president. Rugova, considered a moderate, is firmly and vocally in favor of Kosovo's independence.

The New Agreement's Implications for Kosovo

Given the controversy and uncertainty surrounding the question of Kosovo's status, it should not be surprising that the new agreement between Serbia and Montenegro contains an explicit reference to Kosovo. The agreement states that in the event that Serbia and Montenegro decided to separate, all international documents relating to Yugoslavia - in particular, the relevant Security Council resolution on Kosovo - will be fully applicable to Serbia.

This sentence was likely inserted into the agreement to try to preclude Kosovar Albanians from arguing that with the formal dissolution of Yugoslavia, the country no longer has any "territorial integrity" to protect, leaving Kosovo free to claim independence. (Serbia itself is not mentioned in the Security Counsel resolution on Kosovo.) Indeed, in his first statements reacting to the new agreement, the newly-elected prime minister of Kosovo noted that under the resolution Kosovo is part of Yugoslavia, "but not part of Serbia."

But the primary importance of the agreement does not lie in its precise terms, but in the example it sets. By separating out foreign policy and domestic control, it seems to offer a workable compromise solution, one that defers to the ideal of self-determination while respecting historical borders. It makes specific reference both to the "present-day factual situation" and the "historical rights" of the two member states, two elements that are of course central to debates over Kosovo's sovereignty.

Certain Kosovar leaders, wary of the obvious parallels between Montenegro's situation and Kosovo's, have already minimized the relevance of the new agreement. "The agreement between Serbia and Montenegro does not have any indication on Kosovo issues and Kosovo is now on the way toward independence," said President Rugova bluntly, in a news conference on Saturday.

Serbia, Kosovo and Montenegro?

Although Kosovar Albanians are unlikely to willingly settle for anything less than full independence from Serbia, a Montenegrin-style solution should not be summarily dismissed.

First, from a purely pragmatic perspective, it must be recognized that Security Council members Russia and China, both facing down their own separatist movements, will not want to accede to Kosovo's independence. There are also principled reasons for establishing a constitutional arrangement that recognizes Serbia's connection to the province, a connection with deep historical roots, even if it has been deeply marred by recent events. Finally, it is certainly worth exploring regional alternatives to ethnically-defined statelets, whose establishment is in many ways a pessimistic reflection of inter-ethnic strife.

It is clear, at any rate, that the Kosovo status question will not be decided in the short term. Over the next three years, as Serbia and Montenegro work out the functioning of their new relationship, the possibility of extending it to cover Kosovo can also be assessed.

As the countries of the Balkans experiment in novel constitutional forms, the European example should be kept in mind. Borne out of war, the European Union had its genesis in the difficult problem of how to ensure peace between Germany and France.


Joanne Mariner works as a human rights lawyer in New York. Her previous columns on issues relating to Kosovo, including columns on the Milosevic prosecution, can be found in the FindLaw archive. The opinions expressed in this article are her own.

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