Intermediate Sovereignty As A Basis For
Resolving The Kosovo Crisis
Foreword
The International Crisis Group has decided to publish the report, prepared by
the Public International Law and Policy Group, as a contribution to the debate
on the future status of Kosovo. The views expressed in the paper are those of
the authors and do not necessarily represent the position of the International
Crisis Group.
While the recent agreements brokered by US envoy Richard Holbrooke between
the West and Yugoslavia may, if respected, lead to a short-term lull in violence
against civilians in Kosovo, they do not provide the basis for a lasting peace.
Preventing a renewal of conflict will require a political settlement which satisfies
the main demands of the majority Albanian population and at the same time
protects the rights of the minority Serbs. Given the apparent overwhelming
support for independence among Kosovo's Albanian population, such a
settlement is unlikely to be sustainable unless it at least holds out the prospect
of real constitutional change.
Western governments have been reluctant to admit discussion of independence
for Kosovo as a policy option for fear that such discussion might open a
"Pandora's Box" of problems by encouraging other minority populations in the
region to press for independence. Of particular concern is the prospect of
Macedonia's ethnic Albanians - who make up almost a quarter of that country's
population - launching a bid for sovereignty based on the precedent of an
independent Kosovo. Pessimists predict an ensuing nightmare scenario in which
a new wave of disintegration and ethnic segregation takes hold, sparking new
local wars and threatening the fragile peace in Bosnia where Bosnian Serb
leaders might be tempted to abandon the Dayton Agreement and announce the
secession of Republika Srpska from Bosnia.
The legal analysis contained in this report is significant because it sets out the
legal arguments that differentiate the Kosovo Albanians' claim to independence
from those of other minority groups in the region. By reference to the
constitution of the former Yugoslavia, recognized principles of international law
and legal precedent expressed in decisions of the International Court of Justice
and various international treaties, the authors argue that independence for
Kosovo would not necessarily create a dangerous precedent for the rest of the
region.
International Crisis Group
Brussels, 09 November 1998
Executive Summary
To promote a resolution of the Kosovo crisis, the international community
should propose arrangements granting the people of Kosovo the status of
intermediate sovereignty. The status of intermediate sovereignty would entail
arrangements whereby the people of Kosovo would be entitled to exercise
specified sovereign rights, while retaining specified links to the self-proclaimed
Federal Republic of Yugoslavia (FRY) and committing to respect fundamental
principles of international law, for a period of three to five years. After this
period, Kosovo would be entitled, subject to an internationally conducted
referendum within Kosovo, to seek recognition from the international community.
During the interim period, the people of Kosovo would exercise complete
legislative, executive and judicial control over their internal affairs relating to
economic development, internal security, education, taxation, extraction and
processing of natural resources, transportation, health care, media and news
broadcasting, cultural development, and the protection of minority rights. The
people of Kosovo would also be entitled to begin to conduct their own
international affairs and appoint international representatives.
In exchange for the exercise of these rights, Kosovo would be required to
implement specific guarantees that it would protect the rights of all minority
populations within its territory, respect the territorial integrity of neighboring
states such as Macedonia and Albania, renounce any intention of political or
territorial association with Albania, and accept its borders as confirmed by the
1974 Yugoslav Constitution. Kosovo representatives would also participate in
the government of the Federal Republic of Yugoslavia to the degree necessary
to ensure an effective transition to its own international status.
To ensure the protection of the rights of the inhabitants of Kosovo, both
Albanian and Serbian, international monitors from the OSCE and EU, as well as
independent non-governmental organizations, would be entitled to establish
monitoring missions and would be accorded complete and unrestricted access
to Kosovo and be required to publicly report their findings. In addition to
monitoring the protection of human rights, these organizations would certify the
complete withdrawal from Kosovo within six months of all Yugoslav and Republic
of Serbia military, paramilitary and police forces, as well as any other external
forces.
At the end of this interim period the criteria for recognition of Kosovo would
include the traditional legal criteria of territory, population, government and
capacity to conduct international relations, as well as the additional political
criteria of whether it had fulfilled its commitment to protect the rights of all
minority populations within its territory, respected the territorial integrity of
Macedonia and Albania, rejected any political or territorial association with
Albania, and maintained the status of its borders. Once recognized by the
international community, Kosovo would remain bound by these commitments,
and would revoke its participation in the Yugoslav federal government.
This approach to a peaceful resolution of the Kosovo crisis is based on
principles of international law, which provide that all self-identified groups with a
coherent identity and connection to a defined territory are entitled to collectively
determine their political destiny in a democratic fashion, and to be free from
systematic persecution. In cases where self-identified groups are effectively
denied their right to democratic self-government and are consequently
subjected to gross violations of their human rights, they are entitled to seek
their own international status in order to ensure the protection of those rights.
The case for intermediate sovereignty is further supported by: 1) the legal and
factual similarity between Kosovo and the other Republics of the former
Yugoslavia which were deemed by the international community to be entitled to
international recognition; 2) the legal precedent of earned recognition
established by the international community in recognizing Slovenia, Croatia,
Bosnia-Herzegovina and Macedonia; 3) the fact that Yugoslavia has dissolved,
and the international community has rejected Serbia/Montenegro's claim to
continue its international legal personality; 4) the historical fact that Kosovo,
while legitimately part of Yugoslavia, has never been legitimately incorporated
into Serbia; 5) the fact that the people of Kosovo have been subjected to ethnic
aggression; and 6) recent precedent set by the Russian/Chechen Accords and
the Northern Ireland Peace Agreement.
To promote a resolution of the Kosovo crisis, the international community
should propose arrangements granting the people of Kosovo the status of
intermediate sovereignty.
Statement of Proposed Policy Approach of
"Intermediate Sovereignty"
The status of intermediate sovereignty would entail arrangements whereby the
people of Kosovo would initially be entitled to exercise specified sovereign
rights, while retaining specified links to the self-proclaimed Federal Republic of
Yugoslavia (FRY) and committing to respect fundamental principles of
international law, for a period of three to five years. The borders of Kosovo both
during and after this period would be those as existed in 1974 when Kosovo's
status as an autonomous province of the Socialist Federal Republic of
Yugoslavia (SFRY) within the Republic of Serbia was confirmed by the 1974
Constitution. During the three to five year period, the people of Kosovo would
exercise complete legislative, executive and judicial control over their internal
affairs relating to economic development, internal security, education, taxation,
extraction and processing of natural resources, transportation, health care,
media and news broadcasting, cultural development, and the protection of
minority rights.
During this three to five year period, the people of Kosovo would be entitled to
begin to conduct their own international affairs and appoint international
representatives. At this time, Kosovo would be required to implement specific
guarantees that it would protect the rights of all minority populations within its
territory (and, towards that end, make concrete progress towards an
independent national judiciary with interim international participation), respect
the territorial integrity of neighboring states such as Macedonia and Albania,
renounce any intention of political or territorial association with Albania, and
accept its borders as confirmed by the 1974 Yugoslav Constitution. Kosovo
representatives would also participate in the government of the FRY to the
degree necessary to ensure an effective transition to an international status for
Kosovo.
To ensure the protection of the rights of the inhabitants of Kosovo, both
Albanian and Serbian, international monitors from the OSCE and EU, as well as
independent non-governmental organizations, would be entitled to establish
monitoring missions and would be accorded complete and unrestricted access
to Kosovo and be required to publicly report their findings. In addition to
monitoring the protection of human rights, these organizations would certify the
complete withdrawal from Kosovo within six months of all Yugoslav and Republic
of Serbia military, paramilitary and police forces, as well as any other external
forces.
At the end of this period, Kosovo would be entitled, subject to an internationally
conducted referendum within Kosovo, to seek recognition from the international
community. The criteria for recognition of Kosovo would include the traditional
legal criteria of territory, population, government and capacity to conduct
international relations, as well as the additional political criteria of whether it had
fulfilled its commitment to protect the rights of all minority populations within its
territory, respected the territorial integrity of Macedonia and Albania, rejected
any political or territorial association with Albania, and maintained the status of
its borders. Once recognized by the international community, Kosovo would
remain bound by these commitments, and would revoke its participation in the
Yugoslav federal government.
The Legal Basis for a Policy Approach of Intermediate Sovereignty for Kosovo
According to the general principles of international law, all self-identified groups
with a coherent identity and connection to a defined territory are entitled to
collectively determine their political destiny in a democratic fashion, and to be
free from systematic persecution. In cases where self-identified groups are
effectively denied their right to democratic self-government and are
consequently subjected to gross violations of their human rights, international
law does not require that they remain a constituent territorial unit of the
oppressive state.
To preserve the balance between the principle of territorial integrity and the fact
that territorial units may under some circumstances legitimately disassociate
from their parent state, international law and recent state practice indicate that
as a precondition to the legitimate attainment of international status, a
self-identified group seeking to disassociate itself from the parent state must
affirmatively demonstrate that it has been denied the ability to exercise its right
of democratic self-government and that its people have been denied basic
human rights. Recent state practice also indicates that a territorial unit seeking
to attain international status must respect the principle of uti possidetis (i.e.,
"as
you possess") and should articulate a legitimate basis for its disassociation from
the parent state.
Although the Kosovo Albanians constitute a self-identified group with a territorial
connection, they have been systematically denied their right to collectively
engage in democratic self-government. This denial has been accompanied by
increasing levels of systematic persecution, state-sponsored oppression and
discrimination, and denials of basic human rights. The Kosovo Albanians are
thus not required to remain within the political structure of the self-proclaimed
FRY, and may legitimately claim an international status of their own, subject to
the principle of uti possidetis and the articulation of a legitimate basis for its
disassociation from the self-proclaimed FRY.
In the case of the dissolution of the former SFRY, the republics of Slovenia,
Croatia, Bosnia-Herzegovina and Macedonia were deemed entitled to
disassociate from Yugoslavia on the basis that they had been denied the proper
exercise of their right of democratic self-government, they possessed clearly
defined borders within the umbrella state, and in some cases they had been
subject to ethnic aggression and crimes against humanity committed by the
paramilitary and military forces of the central government. Notably, the
international community did not consider that entities such as the Republika
Srpska, although entitled to a right of political autonomy, were entitled to
disassociate from Bosnia-Herzegovina as they had not been denied the proper
exercise of their political rights, and they did not posses the status of an internal
republic with historically defined borders.
In acknowledging the independence of Slovenia, Croatia, Bosnia-Herzegovina
and Macedonia, the international community, and in particular the European
Community, established a number of preconditions, such that their attainment of
international status would be exercised consistent with the principles of uti
possidetis and respect for territorial integrity. Most important, the international
community recognized these states within the borders that they possessed as
constituent territorial units of the former Yugoslavia. The international
community also required these states to hold a referendum confirming the
wishes of the general public to seek independence, and to demonstrate their
commitment to respect fundamental principles of international law, including
those relating to the protection of minority rights, democratic processes of
governance and economic organization, and the protection of human rights. In
certain instances, the international community further required the new states to
make commitments to respect the territorial integrity of and renounce any
territorial claims against specific neighboring states.
Like the republics of Slovenia, Croatia, Bosnia-Herzegovina and Macedonia,
Kosovo is entitled to attain international status on the basis that its population
has been denied the proper exercise of its right to collectively determine its
political fate in a democratic fashion by being excluded from the political process
within the self-proclaimed FRY. Moreover, the Kosovo Albanians have been
denied the ability to enjoy basic human rights such as access to education and
health care and freedom from torture and arbitrary imprisonment. In addition,
the entity of Kosovo possesses clearly defined internal borders, and prior to the
initiation of the dissolution of Yugoslavia, possessed almost exactly the same
rights and obligations as the other republics of the former Yugoslavia. And, like
many of the other republics, Kosovo now has become the victim of ethnic
aggression and crimes against humanity perpetrated by forces loyal to the
Serbian regime.
The legal basis for intermediate sovereignty is enhanced by the dissolution of
the Yugoslavia, since the United States and other major powers have explicitly
declined to recognize the self-proclaimed FRY as the continuity of the
Yugoslavia, and many of these states have further refused to recognize the
FRY as a state or to grant it membership in international organizations. Under
these circumstances Kosovo occupies a very similar situation to the other
republics of the Yugoslavia which attained international status.
As with the other republics of the former Yugoslavia, the international
community may properly recognize Kosovo within its current territorial
boundaries (consistent with the doctrine of uti possidetis) following its
demonstration of commitment to fundamental precepts of contemporary
international law, including respect for human rights, in particular those of the
Serb minority in Kosovo, and respect for the territorial integrity of Macedonia
and other neighboring states. Moreover, in addition to the precedents set for
conditional recognition by the cases of Slovenia, Croatia, Bosnia-Herzegovina
and Macedonia, precedents for interim arrangements have been established by
the Northern Ireland Peace Agreement.
Historical Background
On December 1, 1918, following the end of World War I, Kosovo became a part
of The Kingdom of Serbs, Croats and Slovenes, which in 1929 became
Yugoslavia. In 1919, in response to a denial of their basic human rights,
including the right to education in the Albanian language, an estimated 10,000
rebels took up arms against the central government of the Kingdom. The
suppression of this revolt involved the commission of widespread atrocities, the
arming of Serbian civilians, and the relocation of women and children to
internment camps in central Serbia. 1 Subsequent to this revolution, the central
government accelerated a colonization program, promising sizable tracts of land
and exemption from taxes for ethnic Serbians willing to relocate to Kosovo.2
In 1929, Yugoslavia was divided into nine governorships, with the territory of
Kosovo being dispersed amongst three governorships. 3 From that time until
World War II, much of the land held by Kosovo Albanians was confiscated and
transferred to the state. From 1933 the government of Yugoslavia also
conducted consultations with the government of Turkey regarding the prospects
for expelling between 200,000 and 300,000 Kosovo Albanians to Turkey. In
1938 an agreement was reached with Turkey to expel as many as 400,000
Kosovo Albanians. This agreement was frustrated by the initiation of World War
II. 4
During World War II, Yugoslavia was occupied by Axis forces, with Kosovo being
partitioned between Bulgaria, Albania (governed by Italy), and Germany.
Following the end of the war, the state of Yugoslavia was reconstituted, with the
1946 Yugoslav constitution providing that Kosovo would be an Autonomous
Region within the Republic of Serbia. Although the 1946 constitution did not
address in detail the rights and obligations of the Autonomous Region of
Kosovo, the Serb Republic constitution provided that Kosovo would direct its
own economic and cultural development and that it would be responsible for
protecting the rights of its citizens. 5 At this time, the Yugoslav government
relaxed the restrictions on the use of the Albanian language and reduced the
intensity of the colonization program, which had been halted by the war - during
which time many of the Serbian colonists had been forced to return to Serbian
territory.
In 1963, Yugoslavia adopted a new constitution, which promoted Kosovo to an
Autonomous Province, but effectively decreased some of its federal rights. Yet,
in 1968 the constitution was amended to provide Autonomous Provinces the
status of "socio-political communities" which was the same term used to
describe the other Republics making up Yugoslavia. The Autonomous
Provinces were also provided the right to engage in all activities associated with
Republic level status, except for those tasks which were of concern to the
Republic of Serbia as a whole.6 In early 1969, the Kosovo Albanians were
permitted to fly the Albanian flag as their "national emblem," and later that
year
the University of Prishtina was established. Throughout the 1970's the Kosovo
Albanians increased their participation in the economic sector, political
bureaucracy, and local police forces, with Kosovo Albanians holding two-thirds
of the membership in the local League of Communists, and three-fourths of the
membership in the local police and security forces. 7
In 1974 Yugoslavia adopted yet another constitution, which provided that the
Autonomous Province of Kosovo, as well as the Autonomous Province of
Vojvodina, would be entitled to a status nearly equivalent to that of the other six
republics of Yugoslavia. In particular, Kosovo was entitled to participate in the
federal government, with its own representative on the rotating federal
Presidency and with elected Parliamentarians in the federal Parliament.
Moreover, Kosovo adopted its own constitution, as authorized by for in the
Yugoslav Constitution of 1974.
In the early 1980's, after Tito's death, the Kosovo Serbians began to agitate for
a return to the earlier political system, in which the Kosovo Serbians held
greater privilege and power. In 1985, the Serbian Academy of Sciences drafted
a "Memorandum," which essentially called for a revocation of the rights
accorded Kosovo under the 1974 constitution, and the creation of a greater
Serbia. In 1987, Slobodan Milosevic, then a deputy to the President of the
Serbian Party, traveled to Kosovo to hear demands by Kosovo Serbians. In
response to an orchestrated riot by Serbian nationalists, Mr. Milosevic delivered
an extemporaneous speech calling for the "defense of the sacred rights of the
Serbs."8 In late 1987, Mr. Milosevic used the growing political unrest in Kosovo
as a platform for assuming the presidency of the Serbian League of
Communists.
In early 1988 the Serbian assembly adopted amendments to the Serbian
constitution which removed Kosovo's control over the Kosovan police force,
criminal and civil courts, civil defense, and economic, social and education
policy. Moreover, the amendments effectively prohibited the use of Albanian as
an official language in Kosovo. To force these amendments through the Kosovo
parliament as required by the Federal constitution, members of the Serbian
security forces surrounded the Kosovo Parliament building with tanks and
armored personnel carriers, and inserted special police and communist party
functionaries amongst the Kosovo delegates.9 These actions were met by mass
demonstrations of the Kosovo Albanian population and resulted in the
declaration of a state of emergency in Kosovo by the Serbian regime.
In March and June of 1990 the Serbian assembly issued a series of decrees
meant to entice Serbs to return to Kosovo, while suppressing the rights of the
Kosovo Albanians. The decrees for instance created new "Serb only"
municipalities, forbade the sale of property to Albanians by departing Serbs,
closed the Albanian language newspaper, closed the Kosovo Academy of
Sciences, and dismissed thousands of state employees.10 In response, on July
2, 1990 the Albanian members of the Kosovo Assembly declared Kosovo "an
equal and independent entity within the framework of the Yugoslav federation."
11 The Serbian regime responded by dissolving the Kosovo Assembly and the
government. And finally, in late 1990 the Serbian regime expelled 80,000
Kosovo Albanians from state employment.
The members of the dissolved Albanian assembly responded by holding a
secret meeting and creating a constitutional law for the Republic of Kosovo, and
then holding a referendum on the question of whether Kosovo should be
declared a sovereign and independent republic. According to Kosovo Albanian
sources, 87 percent of eligible voters participated in the vote, with 99 percent
voting in favor of independence. Subsequently, using the same procedure of
underground voting, the Kosovo Albanians held an election on May 24, 1992,
whereby they elected a new assembly and government.12 More recently in the
spring of 1998, the Kosovo Albanians held a second round of parliamentary
elections as required by their constitutional law.
From 1989 until the present, the Kosovo Albanians have been denied not only
the ability to participate in the federal government, but also the ability to
participate in the local formal political structures responsible for determining the
political fate of Kosovo. Moreover, the Kosovo Albanians have been subjected
to a systematic denial of their basic human rights, which includes a policy of
arbitrary arrests, police violence, detention incommunicado, torture, summary
imprisonment and economic marginalization. Most recently, the Kosovo
Albanians have become the victims of Serbian ethnic aggression, which has
resulted in the displacement of over 350,000 civilians, the deliberate destruction
of over 18,000 homes, the siege of almost half of the population centers, and
the looming prospects of mass starvation as the winter approaches.
In addition to politically and economically marginalizing the Kosovo Albanians,
the Serbian regime also began a process of marginalizing the other Yugoslav
republics by blocking the rotation of the federal Presidency and removing
non-serbs from key federal positions. In response, Slovenia and Croatia
declared independence in June 1991. The Serbian regime retaliated by
ordering the Yugoslav National Army and associated paramilitary forces to
occupy strategic positions in Slovenia and Croatia. The ensuing conflict resulted
in the commission of mass atrocities against civilians in Croatia. Prompted by
the fear of facing the same fate as the Kosovo Albanians, the republics of
Bosnia-Herzegovina and Macedonia declared independence as well. Slovenia
and Croatia were recognized as independent states in early 1992,13 while
Bosnia-Herzegovina was recognized later in the year, 14 and Macedonia was
recognized in late 1993.15 The Serbian regime responded to these declarations
of independence by instigating a war of ethnic aggression, which relied
extensively on terrorizing civilians to accomplish its objects of ethnic
separation.16 The intensity and barbarity of these acts eventually led to the
creation of an international tribunal to prosecute those responsible for war
crimes and crimes against humanity.
After failing to prevent the secession of Slovenia, Croatia, Bosnia-Herzegovina
and Macedonia, Serbia and Montenegro declared the formation of a joint state,
the Federal Republic of Yugoslavia,17 which it claimed continued the
international legal personality of Yugoslavia. The European Community and
United States denied Serbia/Montenegro's claim to be the continuation of
Yugoslavia and refused to recognize it as a state.18
The Entitlement of the People of Kosovo to Attain a Degree of International
Status in order to Ensure their Right to Collectively Determine their Political
Destiny and to be Free from Systematic Persecution
Although international law and state practice strongly support the principle of a
state's territorial integrity, in certain circumstances territorial units of a state
have legitimately disassociated themselves from the parent state and created or
resumed their own international status. Recent examples include the separation
of the Baltic states from the former Soviet Union, the subsequent dissolution of
the Soviet Union and the attainment of statehood by all of its former republics,
the separation of Czechoslovakia into the Czech Republic and Slovakia, and the
dissolution of the SFRY leading to statehood for Slovenia, Croatia, Bosnia and
Herzegovina, and Macedonia.
As proclaimed by former Secretary General of the United Nations,
Boutros-Ghali:
"sovereignty, territorial integrity and independence of states within the
established international system, and the principle of self-determination of
peoples, both of great value and importance, must not be permitted to work
against each other in the period ahead." 19
The Denial of the Kosovo Albanian's Right to
Collectively Determine their Political Fate through
Democratic Means and to be Free from
Systematic Persecution as a Precondition for the
Creation of an Independent Status for Kosovo
To preserve the balance between the principle of territorial integrity and the fact
that territorial units may under some circumstances legitimately disassociate
from their parent state, international law and recent state practice indicate that
the people of a territorial unit seeking disassociation from the predecessor state
must have been denied the ability to exercise their right of self-determination,
and must respect the principle of uti possidetis. Recent state practice also
indicates that a territorial unit seeking to attain international status should
articulate a legitimate basis for its secession.
Recent developments in international law support the proposition that if a
self-identified people with a territorial nexus are denied their right to collectively
determine their political fate through democratic means and to be free from
systematic persecution, they will inevitably become entitled to attain
international status in order to protect these rights. As a result, noted scholars
have argued that, "a minority within a state, especially if it occupies discrete
territory, may have a right to secede - roughly analogous to a decolonization
right - if it is persistently and egregiously denied political and social equality as
well as the opportunity to retain its cultural identity."20 Similarly, scholars have
declared more bluntly that "severe deprivations of human rights often leave no
alternative to territorial separation."21
In fact, international law is affirmatively agnostic as to whether certain groups of
people have or do not have a right to attain international status. It is thus more
appropriate to consider the denial of the right of self-determination at least as a
precondition to the attainment of international status.22 As articulated by Ved
Nanda, for a group of people to seek international status, "there must be little
hope that any action short of separation would satisfy the sub-group's desire for
effective participation in the [democratic] process."23 The greater the degree of
a group's exclusion from the democratic process the more valid the option of
providing that group with international status becomes. 24
The Denial of Self-Determination as a Precondition to the Attainment of
International Status
The denial of the exercise of the right of democratic self-government as a
precondition to the creation of international status is supported most strongly by
the United Nations' 1970 Declaration on Friendly Relations, wherein the General
Assembly set out the familiar competing imperative of territorial integrity, but with
an important caveat:
Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent States
conducting themselves in compliance with the principle of equal rights and
self-determination of peoples as described above and thus possessed of a
government representing the whole people belonging to the territory without
distinction as to race, creed or color.25 [emphasis added]
By this act, the General Assembly indicated that states are entitled to invoke the
right of territorial integrity so long as they possess "a government representing
the whole people belonging to the territory without distinction as to race, creed
or color."26 Where such a government is not present, "peoples" within
existing
states will be entitled to an unlimited right to self-determination.27 This reading
of the clause is supported by a member of the United States delegation who
participated in drafting the Declaration: "a close examination of its text will
reward the reader with an affirmation of the applicability of the principle of
self-determination to peoples within existing states and the necessity for
governments to represent the governed." 28
More recently, in considering whether Quebec could properly secede from
Canada, the Canadian Supreme Court found that,
"a right to secession only arises under the principle of self-determination of
peoples at international law where 'a people' is governed as part of a colonial
empire; where 'a people' is subject to alien subjugation, domination or
exploitation; and possibly where 'a people' is denied any meaningful exercise of
its right to self-determination within the state of which it forms a part.29 The
Court then went on to declare,
A state whose government represents the whole of the people or peoples
resident within its territory, on a basis of equality and without discrimination, and
respects the principles of self-determination in its internal arrangements, is
entitled to maintain its territorial integrity under international law and to have the
territorial integrity recognized by other states. 30
As the Court found that the people of Quebec had not been "denied meaningful
access to government to pursue their political, economic, cultural and social
development, they were not entitled to secede from Canada."31 Implicitly,
however, had the Court found that the people of Quebec were denied any such
a right of democratic self-government and respect for human rights, then
secession from Canada might have been permissible.
As a government's legitimacy derives from a people's exercise of the right of
self-determination and from its conduct in accordance with its obligation to
protect and promote the fundamental human rights of all of its people, the
question must therefore be asked whether a government has been imposed on
people by force, or by an exercise of self-determination.
Before assessing whether the Kosovo Albanians have been denied their right of
democratic self government and respect for human rights, it is necessary to
establish that these rights affirmatively exist in international law, the exact nature
of these rights, and whether the Kosovo Albanians are entitled to these rights. |
