Political status of Kosovo

The political status of Kosovo is the subject of a long-running political and territorial dispute between the Serbian (and previously, the Yugoslav) government and Kosovo's largely ethnic-Albanian population, stemming from the breakup of Yugoslavia at the end of the 20th century, and the ensuing Yugoslav wars. In 1999 administration of the province was handed on an interim basis to the United Nations under the terms of UNSCR 1244 which ended the Kosovo conflict of that year. That resolution reaffirmed the sovereignty of Serbia over Kosovo but required the UN administration to promote the establishment of 'substantial autonomy and self-government' for Kosovo pending a 'final settlement' for negotiation between the parties.

The UN-sponsored talks began in February 2006, and though no agreement was reached between the parties, a proposal from UN Special Envoy Martti Ahtisaari was presented in May 2007 which recommended 'supervised independence' for the province. After many weeks of discussions at the UN in New York, the United States, United Kingdom and other European members of the Security Council formally 'discarded' a draft resolution backing Ahtisaari's proposal on 20 July 2007, having failed to secure Russian backing.

See also: Kosovo status process

Status in the Kingdom of Yugoslavia


Following the Balkan wars and the Treaties of London and Bucharest, which led to the loss of most European territory of the Ottoman empire in 1912 and 1913, Kosovo was governed as an integral part of the Kingdom of Serbia, while its western part (Metohija) by the Kingdom of Montenegro. Before the Ottoman conquest of 1455, it was a part of the Medieval Serbian realm. In 1918 Montenegro was united with Serbia, subsequently forming the Kingdom of Serbs, Croats and Slovenes, recognized in 1919 and 1920 at the Paris Peace Conference and the League of Nations and gaining a Constitution in 1921. In 1922 the historical fictive entities were abolished by a state commission and 33 new administrative oblasts (regions) ruled from the center were instituted. In 1926 the border dispute with the Albanian Republic was resolved and the Gora region incorporated into the Yugoslavian Monarchy.

In 1929, the Kingdom (renamed formally to "Yugoslavia") was restructured into nine larges provinces called banovinas (Banates), which was formalized by a new Constitution in 1931. Their borders were intentionally drawn so that they would not correspond either to boundaries between ethnic groups, or to pre-World War I state borders. Most of Kosovo was allocated to the Zeta Banate (Zetska banovina) and smaller bits to the Moravian and Vardar Banates.

Status in Communist Yugoslavia
The first Constitution of the Federative People's Republic of Yugoslavia (later renamed the Socialist Federal Republic of Yugoslavia) established Kosovo-Metohia and the northern region of Vojvodina as autonomous provinces within the People's Republic of Serbia. It also promoted the Vardar region of southern Serbia to the status of a separate republic, the People's Republic of Macedonia. The constitution, adopted on January 31, 1946, stated that "The People's Republic of Serbia includes the autonomous province of Vojvodina and the autonomous Kosovo-Metohijan region." It did not spell out the rights and scope of the autonomous provinces, instead stating that this was a matter to be "determined by the constitution of the [parent] republic."

The later Constitution of the Socialist Federal Republic of Yugoslavia, adopted on April 7, 1963, again provided for republics to "found autonomous provinces in accordance with the constitution in areas with distinctive national characteristics or in areas with other distinguishing features, on the basis of the express will of the population of these area." Within the Socialist Republic of Serbia, "there are the autonomous provinces of Vojvodina and Kosovo and Metohija, established in 1945 by decision of the People's Assembly of the People's Republic of Serbia in accordance with the express will of the population of these areas." The details of the rights and scope of the provinces was, again, reserved to the republics' constitutions.

The 1974 Yugoslav Constitution, at the time the world's longest, greatly changed the constitutional setup within Yugoslavia. It increased the autonomy of Kosovo and Vojvodina, and gave both autonomous provinces de facto veto power in the Serbian and Yugoslav parliaments as changes to their status could not be made without the consent of the two Provincial Assemblies. It also granted equal status to the Serbian, Albanian and Turkish languages and alphabets within Kosovo.

This created anomalous situation, sometimes said to be unique in world history, in which any of the provinces of Serbia could veto a decision pertaining to entire Serbia, while the parliament of Serbia could not influence decisions of the provincial parliaments. This led to central Serbia, which was not a political unit, being effectively under control of the provinces.

The 1974 Serbian constitution, adopted at the same time, reiterated that "the Socialist Republic of Serbia comprises the Socialist Autonomous Province of Vojvodina and the Socialist Autonomous Province of Kosovo, which originated in the common struggle of nations and nationalities of Yugoslavia in the National Liberation War [the Second World War] and socialist revolution..." The separately promulgated Constitution of the Socialist Autonomous Province of Kosovo declared that

The Socialist Autonomous Province of Kosovo is an autonomous, socialist, democratic, socio-political and self-managing community of working people and citizens, equal Albanians, Montenegrins, Muslims, Serbs, Turks, and members of other nations and nationalities and ethnic groups, based on the power of and self-management by the working class and all working people. The Socialist Autonomous Province of Kosovo is a part of the Socialist Republic of Serbia and the Socialist Federal Republic of Yugoslavia.

The expansion of Kosovo's powers caused considerable discontent among Serbs, and Serbian politicians campaigned for a reversion to Serbian supremacy over the autonomous provinces. It became a rallying cry for a new generation of Serbian politicians. During the 1980s the moderate Serbian communist politician Ivan Stambolić, who became President of Serbia, urged the other republics to agree to a reduction in provincial autonomy.

Stambolić managed to win over the League of Communists of Yugoslavia to his position on this matter at the Thirteenth Congress of the LCY, held in 1986, and then set up a commission to work out the details of constitutional reforms. However, Stambolić was deposed by his erstwhile protégé Slobodan Milošević in 1987, who had used the issue of Kosovo to boost his political support.

Under Slobodan Milošević
The much harder-line Milošević pushed for a tougher policy towards the Kosovo Albanians. On 28 March 1989 he had the Serbian Constitution amended to give the Serbian Assembly exclusive rights to decide on the constitutional structure of the country, overturning the veto right of Kosovo and Vojvodina. When the proposed amendments were put before the Kosovo Assembly, the majority of the Assembly's members abstained in protest and the vote failed to reach the necessary two-thirds supermajority. The Speaker of the Assembly nonetheless declared that the amendments had passed and they were duly enacted.

The following year, a new Serbian Constitution was enacted that drastically reduced the powers of the autonomous provinces, reserving many formerly autonomous rights to the central authorities in Belgrade. It also changed back the name of Kosovo from the Socialist Autonomous Province of Kosovo to the Autonomous Province of Kosovo and Metohija, returning the province to the status predating the 1970s and using the Serbian name for the western part of the region.

The 1990 constitution was strongly resisted by Kosovo's Albanians, who set up a "shadow" government to parallel the official Serb-dominated establishment. The Albanian-dominated Kosovo Assembly passed an unofficial resolution declaring Kosovo an independent entity within Yugoslavia, equivalent in status to the existing republics. A few days later the Kosovo Assembly was formally dissolved by the Serbian parliament on 5 July 1990, all its laws declared invalid and its legislative functions transferred to the Belgrade legislature. On 22 September 1991, the deposed Albanian members of the Kosovo Assembly met secretly in Pristina to declare Kosovo an independent sovereign state, the "Republic of Kosova". However, Albania was the only country to recognize this declaration of independence.

Kosovo independence was also not supported by the international community, which had maintained a consistent policy since 1991 of upholding the existing borders of the individual republics of Yugoslavia. On 10 October 1991 the CSCE (now the OSCE) warned that member states would "never ... recognize any changes of borders, whether external or internal, brought about by force." The United States, the European Community and the Soviet Union issued a joint statement on 18 October 1991 reaffirming these principles.

The same set of principles remained the cornerstone of international policy towards the former Yugoslavia throughout the Yugoslav wars. Thus, for instance, the international community insisted on retaining Bosnia and Herzegovina and Croatia as unified states, denying recognition to the breakaway Republika Srpska and Republic of Serbian Krajina, as well as intervening in the Republic of Macedonia in 2000 to end a conflict between that state's government and ethnic Albanian separatists.

Status and the Kosovo War
Kosovo's status was a key issue in the political violence that presaged the Kosovo War of 1999. The ethnic Albanian Kosovo Liberation Army sought to obtain independence for Kosovo, launching attacks on civilians and Serbian and Yugoslav security forces in Kosovo. The Serbian and Yugoslav governments strongly opposed this and instituted an increasingly severe military crackdown on Kosovo Albanian separatism, which eventually led to NATO launching a campaign of air strikes.

The international community also did not support independence for Kosovo at this stage. The United Nations Security Council passed UN Security Council Resolution 1160 on 31 March 1998 urging the parties to reach a peaceful settlement and rejecting any unilateral attempts to redraw borders, instead "affirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia." The same principles were reaffirmed in a high-level meeting during the 1999 NATO bombing campaign, when the G8 foreign ministers adopted a policy of establishing "an interim administration for Kosovo ... under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia".

On 2 June 1999, a joint Finnish-Russian team headed by former Finnish president Martti Ahtisaari presented a set of proposals to President Milošević. These included a commitment to establish "an interim political framework agreement providing for substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region." Under severe pressure from the ongoing NATO bombing, Milošević agreed to withdraw Yugoslav forces from Kosovo and permit the establishment of a UN-led administration in the province, with security to be provided by a NATO-led force (KFOR).

Temporary administration of the United Nations Mission in Kosovo
Kosovo's constitutional status of the period June 1999-February 2008 was established by the United Nations in UN Security Council Resolution (UNSCR) 1244, adopted on 10 June 1999. The Security Council placed Kosovo under the temporary administration of the United Nations Mission in Kosovo (UNMIK), under the leadership of a Special Representative of the Secretary General. It also explicitly upheld the existing sovereignty of Serbia over Kosovo, "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 [the Finnish-Russian proposals]." It also established a requirement that the post-conflict status process must take full account of "the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia."

In a public speech on 9 June 1999, President Slobodan Milošević declared:

We have not given up Kosovo. The Group of Eight most developed countries of the world and the United Nations guarantee the sovereignty and territorial integrity of our country. This guarantee is also contained in the draft resolution. The Belgrade agreement has closed the open issues of the possible independence of Kosovo at the time prior to the aggression. The territorial entirety of our country cannot he threatened ... the political process, which will be based on the principles which stem from previously conducted discussions [is] also equally based on the sovereignty and territorial integrity of our country. This means that only autonomy, and nothing else outside that, can be mentioned in this political process.

The reality on the ground was rather different, as Ylber Hysa has noted. Although "Resolution 1244 respects the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, including Kosovo", and even provided for Serbian troops to be stationed in the province, on the ground "certain territories are under the full control of KFOR and the international administration" without any Serbian involvement. However, this part of the resolution was never implemented. The severely circumscribed control exercised by Serbia in Kosovo has led many commentators to describe the nature of its sovereignty as purely "nominal".

William G. O'Neill comments that the resolution's wording was also intended "to reassure Republic of Macedonia, which has a substantial Albanian minority, that its territorial borders were not at risk. It also can be seen as a warning to Albania not even to think about any territorial expansion to create a 'greater Albania'."

On 15 May 2001, UNMIK enacted a "Constitutional Framework for Provisional Self-Government." Although it provides a constitutional framework, it is not a constitution, and is deliberately nonjudgmental on the question of sovereignty, as UNMIK itself does not have a role in the determination of Kosovo's final status. It defines Kosovo as "an entity under interim international administration" and "an undivided territory".

Crucially, Kosovo's own institutions were specifically barred from making any unilateral decisions about the province's status. The Constitutional Framework states that the Provisional Institutions of Self-Government (PISG) "shall not in any way affect or diminish the ultimate authority of the SRSG [Special Representative of the Secretary General] for the implementation of UNSCR 1244". The Kosovo Assembly is in effect prohibited to make any decisions or declarations on the future status of Kosovo There are no Ministers for Foreign Affairs or Defence as these functions are reserved to the authority of the SRSG. UNMIK eventually approved the creation of Ministries of Justice and Internal Affairs in late 2005, but noted that the establishment of the ministries was not linked to the question of Kosovo's final status.

The 2003 Constitution of the newly created state of Serbia and Montenegro officially acknowledged Kosovo's new interim status, describing Serbia and Montenegro as "the state of Montenegro and the state of Serbia which includes the Autonomous Province of Vojvodina and the Autonomous Province of Kosovo and Metohija, the latter currently under international administration in accordance with UN SC resolution 1244." In 2006, Serbia drafted a new constitution that again referred to Kosovo as an integral part of Serbia. Currently, the government of Kosovo has accepted that the province is not a sovereign entity, but has committed itself to seeking independence from Serbia.

Kosovo's unresolved status has caused significant problems. UNMIK was given exclusive rights to manage Kosovo's economic affairs and stated its intent in the Constitutional Framework to establish a market economy. Prior to 1999, much of Kosovo's economy had been controlled by the state. All publicly owned enterprises were owned by the Yugoslav government or the Serbian state, both governed from Belgrade. When UNMIK began implementing privatization of assets that it did not own, Serbs with interests in the companies subject to privatization sued first UNMIK and then the UN in New York.

Swedish economist Jessica Johnsson claims that the fact that Kosovo is still regarded in law as being part of Serbia, as well as the ongoing political tensions, has caused it significant difficulties in achieving economic development and that its uncertain legal status has prevented it from accessing lending from International Financial Institutions such as the World Bank.

Serbian constitutional referendum
A referendum on a proposed draft of the new Serbian constitution was held on October 28 and October 29, 2006 and has resulted in the draft constitution being approved by the Serbian electorate. The constitution is Serbia's first as an independent state since the Kingdom of Serbia's 1903 constitution. Over 6.6 million people were entitled to vote in the national referendum.

In the preamble to the constitution it states that "Kosovo is an autonomous province of Serbia with significant autonomy". Serbian legal scholars found that this unambiguous statement means it would be unconstitutional for Kosovo to secede from Serbia.

Prior Opinions
United Nations Security Council Resolution 1244, passed in 1999, reaffirmed in its preamble the "commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia" and authorised "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", i.e. the United Nations Interim Administration Mission in Kosovo (UNMIK), with security provided by a NATO-led Kosovo Force (KFOR). The Resolution also authorised a process to determine Kosovo's final status. Concerning the latter, Annex 1 to the Resolution states that the "political solution to the Kosovo crisis" should take "full account of ... the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia".

A NATO report on the question of Kosovo's status, the Declaration on Friendly Relations, states a region may have the right of secession in the case of foreign occupation or if the region is a colony of another nation. The NATO report claims, while mentioning disagreement on the interpretation, that a third condition exists when "a people whose right to internal self-determination has been thoroughly violated by a Government that does not represent the people" and suggests Kosovo qualifies under this condition. It concludes that while there is a case in favor of a right to secession for Kosovo, but rejects the right to secession in cases where regions are open to democratic mechanisms.

Kosovo Status Process
UN-backed talks on the status of Kosovo, led by UN Special Envoy Martti Ahtisaari, began in February 2006 with the aim of completing them by the end of that year. Whilst progress was made on technical matters, both Kosovo and Serbia remain diametrically opposed on the question of status itself. Prime Minister of Kosovo's Provisional Institutions, Agim Çeku stated that his government would accept nothing less than independence and would not contemplate partition. On the part of Serbia, Prime Minister Vojislav Koštunica stated Serbia would give Kosovo full autonomy but could not accept independence. The position of the Contact Group of leading nations is that Kosovo "must remain multi-ethnic and the settlement must be acceptable to the people of Kosovo. Additionally, there will be no return of Kosovo to the pre-1999 situation, no partition of Kosovo and no union of Kosovo with any other, or part of another, country."

In February 2007, Ahtisaari delivered a draft status settlement proposal to leaders in Belgrade and Pristina, the basis for a draft UN Security Council Resolution which proposes 'supervised independence' for the province. As of early July 2007 the draft resolution, which is backed by the United States, United Kingdom and other European members of the Security Council, had been rewritten four times to try to accommodate Russian concerns that such a resolution would undermine the principle of state sovereignty. Russia, which holds a veto in the Security Council as one of five permanent members, has stated that it will not support any resolution which is not acceptable to both Belgrade and Pristina.

After many weeks of discussions at the UN, the United States, United Kingdom and other European members of the Security Council formally 'discarded' a draft resolution backing Ahtisaari's proposal on 20 July 2007, having failed to secure Russian backing. Kosovo Albanian leaders reacted by proposing unilateral independence for 28 November 2007, though the UN would be required to overrule any such action.

Declaration of Independence
Despite official UN and Russian disapproval, the U.S., UK, and France appeared likely to recognize Kosovar independence if it had been declared on November 28, 2007 or on December 10, 2007, the deadline for an agreement between Kosovo and Serbia set by UN Secretary General Ban Ki-moon. In February 2008, Hashim Thaçi said that about 100 countries were ready to immediately recognise Kosovo's independence after declaration.

Kosovo declared independence on February 17, 2008. On 18 February 2008 the National Assembly of the Republic of Serbia declared Kosovo's declaration of independence as null and void per the suggestion of the Government of the Republic of Serbia, after the Constitutional Court of the Republic of Serbia deemed the act illegal arguing it was not in coordination with the UN Charter, the Constitution of Serbia, the Helsinki Final Act, UN Security Council Resolution 1244 (including the previous resolutions) and the Badinter Commission.

A constitution of the Republic of Kosovo was proclaimed on 15 June 2008, and immediately denounced as illegal by Serbia.

International Court of Justice Review
On March 27, 2008 Serbian Foreign Minister Vuk Jeremic said Serbia would request the International Court of Justice to review the legality of Kosovo's declaration of independence. On 8 October 2008 the UN General Assembly adopted Serbia's resolution requesting the International Court of Justice to assess the legality of Kosovo's declaration of independence. The United Nations General Assembly adopted this proposal on October 8, 2008 with 77 votes in favor, 6 votes against and 74 abstentions.