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Print This PageIs Kosovo Part of Serbia?
Not really, says Noel Malcolm, a senior research fellow at Oxford, in today’s Guardian:
“Kosovo is Serbia”, “Ask any historian” read the unlikely placards, waved by angry Serb demonstrators in Brussels on Sunday. This is rather flattering for historians: we don’t often get asked to adjudicate. It does not, however, follow that any historian would agree, not least because historians do not use this sort of eternal present tense.History, for the Serbs, started in the early 7th century, when they settled in the Balkans. Their power base was outside Kosovo, which they fully conquered in the early 13th, so the claim that Kosovo was the “cradle” of the Serbs is untrue.
What is true is that they ruled Kosovo for about 250 years, until the final Ottoman takeover in the mid-15th century. Churches and monasteries remain from that period, but there is no more continuity between the medieval Serbian state and today’s Serbia than there is between the Byzantine Empire and Greece.
Kosovo remained Ottoman territory until it was conquered by Serbian forces in 1912. Serbs would say “liberated”; but even their own estimates put the Orthodox Serb population at less than 25%. The majority population was Albanian, and did not welcome Serb rule, so “conquered” seems the right word.
But legally, Kosovo was not incorporated into the Serbian kingdom in 1912; it remained occupied territory until some time after 1918. Then, finally, it was incorporated, not into a Serbian state, but into a Yugoslav one. And with one big interruption (the second world war) it remained part of some sort of Yugoslav state until June 2006.
Until the destruction of the old federal Yugoslavia by Milosevic, Kosovo had a dual status. It was called a part of Serbia; but it was also called a unit of the federation. In all practical ways, the latter sense prevailed: Kosovo had its own parliament and government, and was directly represented at the federal level, alongside Serbia. It was, in fact, one of the eight units of the federal system.
Almost all the other units have now become independent states. Historically, the independence of Kosovo just completes that process. Therefore, Kosovo has become an ex-Yugoslav state, as any historian could tell you.
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http://opiniojuris.org/2008/02/27/is-kosovo-part-of-serbia/
7 Responses
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I really don’t want to be a pest with this whole Kosovo thing, and I am certainly not going to be pushing for some sort of nationalistic Serbian narrative, but Professor Malcolm’s analysis shows well the perils of drawing legal conclusions from historical facts by someone with little or no background in the law. The same problem is evident in Christopher Hitchens’ recent (and pretty bad, really) article in Slate regarding Kosovo.
So, as to the facts as laid out by Professor Malcolm - though many Serbs with a more mythomaniac view of history would dispute them, I do not. It is in any event an entirely pointless exercise to bicker about who preceded whom centuries ago in Kosovo or anywhere else, even though one can see that same exercise happen elsewhere, as with Israel and Palestine. It is undoubtedly true that, except for the medieval Serbian state, Kosovo was formally a part of Serbia only since the end of the First World War - some 90 years. The problem I have with Professor Malcolm’s (quasi-legal) analysis is that he implies that Kosovo wasn’t really a part of Serbia even after 1918, but only of the Yugoslav state, and that Kosovo’s independence should be seen as the last step in the breakup of Yugoslavia, not as secession from Serbia. At least from a legal standpoint, this is simply incorrect.
First, the Kingdom of Serbs, Croats and Slovenes which was established after the First World War, later to be named Yugoslavia, was, as a matter of international law, the continuator of the legal person of the Kingdom of Serbia. Though it was in reality a new state, legally it was not seen as one. All of the treaties concluded by the Kingdom of Serbia continued to bind the new kingdom. Some are in force to this very day, as is the case (if I am not mistaken) with the extradition treaties with the US and the UK. So, in that sense Kosovo did become a part of Serbia, as Serbia lived on as the Kingdom of Serbs, Croats and Slovenes, which was at a domestic level a unitary state ruled by the Serbian monarch.
Secondly, Yugoslavia was indeed dismembered by the occupying German and Italian forces during the Second World War. Legally speaking, however, Yugoslavia never ceased to exist, and Kosovo remained its part. After the war, all territorial changes effected by the Axis powers, the most significant of them being the creation of the Independent State of Croatia, were declared null and void. Such was also the case with the German Anschluss of Austria.
Thirdly, in the Communist Yugoslavia Kosovo was an autonomous province, but it was nonetheless a province within the republic of Serbia. This is explicitly stated in all Yugoslav constitutions (I can provide references, if required). What’s true is that gradually, through successive constitutions, both the republics and the two provinces (Vojvodina and Kosovo) grew more autonomous from the federal government, and did the provinces in relation to Serbia itself. With the 1974 Constitution the two provinces were basically equivalent to the republics, but even then they were formally still a part of Serbia.
Fourthly, and crucially, though the abolishment of the autonomy of the two provinces by Milosevic was certainly abusive, Kosovo remained a part of a new successor state of the former Yugoslavia, the FRY (Serbia and Montenegro), which, despite its claims to the contrary, did not have continuity with the old Yugoslavia. Serbia, however, DOES have continuity with the FRY, as was explicitly recognized, inter alia, by the UN, the Council of Europe, the ICJ and the ECtHR. Therefore, any safeguards of territorial integrity of the FRY stipulated in UNSC Res 1244 (which was previously analyzed by Chris), continue to apply to Serbia - though, as Chris has shown, they do not really amount to much.
In other words, though the secession of Kosovo is historically certainly a part of the process of the breakup of the former Yugoslavia, legally it is most certainly not. Kosovo is NOT a successor state of the former Yugoslavia, but is at best a successor state of Serbia (FRY), as is, bizarrely, the state of Montenegro, which obtained independence with Serbian consent and which actually was a full-fledged republic in the former Yugoslavia. Kosovo does not, for example, have a claim to any of the embassies or assets of the former Yugoslavia, which were divided among its successor states via treaty.
To conclude, Professor Malcolm’s broader point on the misuse of grandiose historical claims by Serbs to legitimize their sovereignty over Kosovo is certainly correct. When it comes to his legalistic conclusions, however, one should approach them with a grain of salt.
at 10:01 am EST Marko Milanovic
Marko,
One can subscribe to some of your points. I will set aside my opinion on the status of Kosovo under former Yugoslav Federation. To claim, however, that Montenegro, gained independence through Serbia’s consent is somehow stretching the limits of one’s argument. It is still remembered how Serbia (FR of Yugoslavia at the time) claimed that all former republics (i.e Slovenia, Croatia and Bosnia) in 1991 seceded from Yugoslavia (Serbia) and that therefore Serbia is the only successor of Yugoslavia. Yugoslav federation dissolved itself in 1991 and it is questionable that anything more than majority will of Montenegro people was necessary for Montenegro to achieve independence.
at 9:40 am EST Jernej Letnar
Marko is of course correct in this instance. What juridical principles are we to derive from the historian’s viewpoint, which flatly contradicts the successor state principle under international law? Yea, none.
Dumb article.
at 9:58 am EST 18 USC 2340
Jernej,
You are perfectly correct that the FRY did not have continuity with the SFRY - I’ve explicitly said that in my post. Montenegro, however, became a part of the FRY, and did not declare independence when the other former republics of the SFRY did so.
The independence of Montenegro was indeed obtained consensually, in agreement with Serbia. Montenegro’s option to pursue independence was recognized, but postponed for three years or so, with the adoption of the so-called Belgrade Agreement. The Constitutional Charter of Serbia &Montenegro, which was legally the continuator of the FRY, prescribed in Art. 60 the procedure for obtaining independence. That procedure was followed, and after a referendum Montenegro declared independence.
My point is that a referendum is by itself not enough for independence as a matter of international law, as is shown, inter alia, by the Quebec ruling of the Canadian Supreme Court. This is, I think, not particularly controversial. It is the fact that Serbia/SaM/FRY consented to a referendum that was the basis for Montenegro’s independence in international law. When Montenegro obtained independence, it had to apply for membership in the UN and the CoE, while Serbia did not, as it continued the legal personality of the FRY/Serbia and Montenegro. That is the key difference from this final episode of creation of new states in the Balkans from that of the early 1990s. The same is with Kosovo - even if its independence was entirely uncontested, e.g. if Serbia gave its consent, it would still be a successor state of Serbia/SaM/FRY, not of the SFRY.
at 10:11 am EST Marko Milanovic
Note also Malcolm’s likely deliberate use of the word “unit” to describe Kosovo, thereby conflating it status with that of the Yugoslav republics to further the argument for secession.
That the piece is full of errors and misunderstandings should not be surprising as Malcolm has been a fierce advocate for Kosovo independence since 1999.
Also, Marko, was it true that Kosovo had its own parliament and was directly represented at the federal level prior to 1974? I thought this was a product of the 1974 constitution (but I could be wrong about this).
at 1:32 pm EST Milan Markovic
Here is a link to Malcolm’s oped in the NY Times for Kosovo’s independence.
at 1:33 pm EST Milan Markovic
Milan,
The 1963 Constitution of Yugoslavia did increase the autonomy of Kosovo, but it was still constitutionally emanating from the Constitution of Serbia. It’s after the 1971 amendments to the Yugoslav constitution and the new 1974 that Kosovo got total autonomy from Serbia, with executive, legislative and judicial independence, a legal order emanating from its own constitutional law, and became federally represented. Of course, all of this stuff (gah, Communist legal history) is perfectly irrelevant as a matter of international law. Statehood was only one, and there was only one international legal personality, that of Yugoslavia.
at 3:18 pm EST Marko Milanovic