Various readers are continuing assorted Balkan wars in their comments on this site. It always happens, sooner or later. Keep it cool, folks.

Reader Alban (pro-Kosova) makes a strong (and wrong) claim:

Kosova never has been part of Serbia. Under Socialist Federative Republic of Yugoslavia (SFRY) it had the status of autonomous and constitutive region.

Check out the 1946 Constitution of the then new Federal People’s Republic of Yugoslavia, Article 2. It says that the new republic is made up of six republics, and that the People’s Republic of Serbia ‘has within it’ (ima u svom sastavu) the Autonomous Province of Vojvodina and the Autonomous Kosovo-Metohija oblast. Case closed.

Alban also points us to an article by Noel Malcolm in Standpoint, which gives a  sophisticated analysis and seeks to distinguish the Kosovo situation from eg that in S Ossetia.

Noel Malcolm’s argument is that Kosovo had a strange dual status within communist Yugoslavia:

On the one hand, Kosovo was described (sic) as part of Serbia; on the other, many clauses gave Kosovo all the essential rights and functions of a republic within the federal system. It had its own parliament, government, bank, territorial defence force and so on; it had the right to issue its own constitution; it even had the right to sign international agreements; and it was represented on all the main federal bodies directly – not as a part of Serbia.

It follows, he says, that when the SFRY was said by the Badinter Commission to have ‘dissolved’ at the end of the Cold War, the various federal-level units also perforce separated. So Kosovo’s independence in effect thereby became a matter of fact, not law, since in substance Kosovo was more of a federal phenomenon than an internal Serbian one:

To say that Kosovo had a dual status in the constitution might make it sound as if it was half part of Serbia and half part of the federal system, but the reality was more like 5 per cent and 95 per cent. It was part of Serbia in some very limited and theoretical ways, and directly part of the federation in almost every practical way.

This is an ingenious argument, and I leave it to the ICJ to pronounce on the subject as and when it gets round to looking at Kosovo’s independence declaration.

Suffice to say that the unelected Yugoslav communists fudged various constitutional issues for all the obvious reasons. In particular, it is not merely a quirky and technical detail that Kosovo formally stayed ‘within’ Serbia as an autonomous province albeit with many ‘federal’ trappings. It was not made a full republic in its own right for (probably) two full and significant reasons:

  • Serbia would have rebelled – Serbs felt that after WW2 Serbia had been denied by the other republics the right to incorporate Kosovo more substantively into its own governance as part of a Comintern/Stalinist/Tito plan to ‘cut Serbia down to size’
  • the six FPRY/SFRY republics were ‘for’ their respective narod(i) ie ‘peoples’ whose main homeland was Yugoslavia; ‘narodnosti’ were sizeable ethno-linguistic communities living in Yugoslavia whose homeland was elsewhere (Albanians, Hungarians)

I don’t know when this clever constitutional theory distinction between narodi and narodnosti came to the fore in the Yugoslav context. It of course explains why Bosnia and Herzegovina was such a mess.

Slovenia was ‘for’ the Slovenes, Croatia ‘for’ the Croats and so on. That was more or less accepted. But Bosnia within SFRY had three ‘constituent peoples’ (Muslims, Serbs and Croats) all disagreeing on ‘whose’ territory it was. Hence the conflict. And the philosophical and practical rows about the BH constitution which drag on today.

This formula about ‘constituent peoples’ even survived in the Dayton Peace Accords and the new BH Constitution agreed back in 1995, although (bizarrely) a new constituent people called Others was also created from nowhere. Joe Biden was right on this one.

So whereas Noel Malcolm makes an eloquent case, the fact that Kosovo’s federal existence in SFRY was expressed through its being ‘within’ Serbia is constitutionally and politically significant . The ICJ’s views (if any) on this will be closely scrutinised by many other countries round the world as it might bear upon the prospects for separatist-inclined people/regions within their own borders.

One other point. I am no international law expert but Noel Malcolm’s argument that the SFRY as per the Badinter Commission’s argument is surely demolished by UNSCR 1244:

Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and annex 2 …

Reaffirming the call in previous resolutions for substantial autonomy and meaningful self-administration for Kosovo …

Authorizes the Secretary-General, with the assistance of relevant international organizations, to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia…

These passages make sense (and were accepted by eg Russia) only on the basis that they do indeed confirm that Kosovo remained within the (then) FRY, which necessarily meant that it did so through that thin but solid formal constitutional link to Serbia.

All that said, here again is a passage from that EU-sponsored report on Georgia/Russia:

Hence, South Ossetia did not have a right to secede from Georgia, and the same holds true for Abkhazia for much of the same reasons. Recognition of breakaway entities such as Abkhazia and South Ossetia by a third country is consequently contrary to international law in terms of an unlawful interference in the sovereignty and territorial integrity of the affected country, which is Georgia.

Kosovo may not have had a formal right to secede. But if in fact it does secede – and (eventually) most or enough countries round the world accept that fact and recognise Kosovo as a new country – that’s what happens.

De facto elides into de jure … if you wait for long enough?