Citizenship, Sovereignty and Soft Borders in Southeast Europe

Christian Tomuschat, Berlin

I. Introduction

It is not easy for a person who has only a limited personal experience with South East Europe

to set out his views on current developments in that region in an introductory contribution to a

symposium supposed to provide some guidance to future developments. Indeed, the territorial

contacts of the present author have been scarce, contrary to ties of personal friendship with a

number of “Yugoslavs” who, after the break-up of their home State, had to define their new

national identity willy-nilly.1. My main connection with the region came about quite

surprisingly in December 1991 when I was sent by the German Federal Government to

Zagreb, at a time when the war was still raging, to look into the guarantees provided by the

new Croatian Constitution and the relevant legislation to ethnic minorities.2 When with the

assistance of many truly knowledgeable persons the conclusion was reached that the newly

introduced regime was not marred by unacceptable discrimination – according to black letter

law -, Chancellor Kohl recognized Croatia one day before Christmas eve, to the dismay of

Germany’s partners in the European Community who followed suit only three weeks later, on

15 January 1992. Additionally, shortly before that, in September 1991, I had been a member

of a CSCE delegation3 which visited Albania in order to find out whether the internal situation

corresponded, or was on the way, to the relevant standards established within the CSCE

region. Lastly, this author wrote a few articles two articles on Kosovo from a legal viewpoint4

and edited a book on the conflict5 – that is all. Thus, it seems almost preposterous to lecture

you on the situation of the region. Therefore, the following observations will be confined to

fairly general statements although it seems inevitable, from time to time, to make a few

comments that may irritate some of those who can rightly call themselves specialists, above

all by having lived in the region and thereby having become direct witnesses of the tragic

occurrences.

1 Persons unwilling to declare any official affiliation may not be discriminated against on that ground, see European Court of Human Rights, Sejdic and Finci v. Bosnia and Herzegovina, Applications 27996/06 and 34836/06, 22 December 2009.2 See Hans-Dietrich Genscher, Erinnerungen (Berlin: Siedler, 1995) 961.3 It is common knowledge that as from 1 January 1995 the CSCE took the name “OSCE”.4 “Yugoslavia’s Damaged Sovereignty over the Province of Kosovo”, in: G. Kreijen (ed.), State, Sovereignty, and International Governance (Oxford: Oxford University Press 2002) 323-347; “Recognition of New States – The Case of Premature Recognition”, to appear in: Peter Hilpold (ed.), Kosovo’s Declaration of Independence (to appear in 2011).5 Kosovo and the International Community. A Legal Assessment (The Hague et al.: Kluwer Law International 2002).

The first thing an outside observer notes when having a look at the title is that the word

“Balkans” has been carefully avoided. Southeast Europe sounds more neutral, more sober.

Indeed, the word “Balkans” has acquired a negative connotation not only here in Germany

through a history which the public in Western and Central Europe has never understood

completely, a history of turmoil and revolutions, of which mostly the dark sides and not the

promising and future-oriented aspects have been highlighted. Balkanization has become a

suspicious word carrying all the evils of instability and disorder.6 And, furthermore, nobody

knows really what territory is encompassed by the “Balkans”. Do they start already in Austria

as sarcastic voices suggest? And is Greece a part of the Balkans or a special territorial unit

that stands apart? In any event, all the reluctance vis-à-vis the Balkans is reflected in the

famous words by Bismarck which I do not want to reiterate here because they are too well

known to elicit any curiosity. Bismarck realized that the Balkans were a region which, though

far away, threatened stability in western Europe, in particular the stability of Germany’s ally

Austria whose main territories lay to the east of Vienna.

II. The Balkans – a Region in Transition

Since the 18th century, the Balkans have been a region in transition. For hundreds of years, the

Ottoman Empire had been the dominant force. When Greece became independent in 1830, the

process of national emancipation became irreversible. At the same time, Serbia obtained a

large degree of autonomy as a principality within the Ottoman Empire. Other sections of the

Ottoman Empire got gradually under Austrian jurisdiction. The defeat of Austria and of the

Ottoman Empire in World War I opened up a new chapter of history in the region. From the

ashes of those empires, new States emerged, in particular the Kingdom of Serbs, Croats and

Slovenes and Albania in the south of the region. The 20 years until the outbreak of World

War II were not really years of happiness in the Yugoslav State. The Kingdom did not find its

internal unity. In particular, the tensions between Serbs and Croats did not abate.7 World War

II brought again heavy suffering to the region. At the end of the war, the communists took

over, making their ideology the glue that should keep the country together. When in 1990

socialism as a political philosophy broke down, Yugoslavia also collapsed very quickly. Its

dismemberment produced in different stages six new States which all were admitted fairly

swiftly to the United Nations as successor States. Only Kosovo as the seventh State still

6 See assessment by Dmitriy I. Polyvannyy, “The Balkan Minorities: Divided States, Peoples and Societies”, European Yearbook of Minority Issues 5 (2005/6), 181, at 182, who underlines the rejection, by Slovenes and Croats, of “belonging” to the Balkans.7 See Marie-Janine Calic, Geschichte Jugoslawiens im 20. Jahrhundert (München: Beck, 2010) 85-97.

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stands ante portas. Recognized by 75 States, but not by Russia and China, and not even

recognized by all the States members of the European Union8 although the International Court

of Justice found its Declaration to be unobjectionable from the viewpoint of international

law,9 it remains in limbo. Not even admission to the Council of Europe has been secured

although no veto power exists there. New members can be admitted by a vote of two thirds of

the members. Information easily accessible to the public does not reveal how the present

stalemate is to be explained. Two answers are conceivable. Either the necessary two thirds

cannot be mustered, or there is still a hope that within a short time a consensual solution can

be reached. In particular, the dissidents in the European Union10 should be susceptible of

being persuaded that the case of Kosovo is not a precedent that could harm their territorial

integrity. In particular, Spain’s preoccupations seem almost ludicrous in that the autonomous

communities seeking to become independent in the long run, Catalonia and the Basque

Country, do not suffer from any discrimination within Spain, but enjoy privileges envied by

all the other communities of the country.

Why am I telling all this, things which you all know much better than me? Because they

constitute the backdrop of what I am now trying to put before you as a conceptual

construction which requires as its basis some factual elements in order to acquire at least a

certain degree of plausibility.

III. National and Ethnic Identities

Apparently, after the demise of the communist or socialist ideology, the different ethnic

groups of the Socialist Federal Republic of Yugoslavia discovered that they had very little in

common. Only a small part of the population felt that they had a truly “Yugoslav” identity

that should not be downgraded to an ethnic or tribal identity. But this was a fairly small

percentage of the overall population. To declare oneself a Yugoslav was also a sign of

intellectual modernization. This process of modernization should also have revamped the

governmental structures and the traditional lines of thinking in society. It seems that the

majority in the other ethnic groups than the Serbs resented having been marginalized by the

8 Cyprus, Greece, Romania, Slovakia and Spain have abstained from recognizing Kosovo as a new State, fearing that recognition of the reality on the ground might be used as a precedent by secessionist movements in their countries. The same States also voted in favour of requesting an advisory opinion of the International Court of Justice, apparently hoping that the ICJ would take a stance against the lawfulness of Kosovo’s breakaway from Serbia, while all the other 22 member States of the EU abstained, see UN doc. A/63/PV.22, 8 October 2008, 10.9 Advisory Opinion of 22 July 2010, Accordance with international law of the unilateral declaration of independence in respect of Kosovo. For a first comment see Richard Falk, “The Kosovo Advisory Opinion: Conflict Resolution and Precedent”, AJIL 105 (2011), 50-60.10 See above note 8.

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prevalent Serb influence in all key positions of societal life. What had begun in 1918 as a

trinity of Serbs, Croats and Slovenes had progressively become a system of hegemonic

leadership of the Serbs – and the other ethnic groups, in particular the Albanians in Kosovo,

were even further down in the hierarchy of power. The charges which before World War I had

been directed against the Austro-Hungarian Empire, to wit that it had become a

“Völkergefängnis”, a prison of peoples, were now directed against the Socialist Federal

Republic of Yugoslavia (SFRY), at least indirectly.

Thus, it may not be too far-fetched to argue that the dismemberment of the SFRY amounted

to some kind of process of decolonization. The peoples in the Balkans and particularly in the

territory of Yugoslavia had been under foreign domination for hundreds of years, first by the

Turks and the Austrians, later the Serbs who were of course not colonial rulers in a true sense,

but who were indirectly perceived as such. The Kosovars even felt that they had to endure

some kind of apartheid regime after the autonomy granted to them in 1974 had been largely

abolished by the Milosevic regime in 1989.11 There was a profound urging by the people in

the republics and provinces of the SFRY to become truly independent, to take matters into

their own hands, to conduct policies on their own without being under the guardianship and

control of another nation. This is fully understandable. To be the master at home in your own

country corresponds to a deep longing of every people, and of course State sovereignty

constitutes the best tool to realize that dream. A sovereign nation can do whatever it sees fit to

do. It is certainly restrained by the general rules of international law but generally, in

particular in respect of its domestic policies, it can shape its policies according to its own

value preferences. It has been a dream of all ethnic groups across the globe to rule their own

affairs under the protection of sovereign statehood. In the 19 th century, this dream came true

for Italy and Germany. Anywhere peoples wanted to become sovereign nations like France

and Great Britain: united, strong and prosperous. Under the United Nations Charter the ideal

of the nation-State obtained further support from the principle of self-determination which

sees a “people” - and not an idea or other common concept - as the core element of every

State. UN General Assembly Resolution 1514 (XV) of 14 December 1960 has given specific

expression to that guiding principle by proclaiming that “all peoples have the right to self-

determination”.

11 See Juliane Kokott, “Human Rights Situation in Kosovo 1989-1999”, in: Christian Tomuschat (ed.), Kosovo and the International Community. A Legal Assessment (The Hague et al.: Kluwer Law International, 2002) 1. at 3-5; Marc Weller, Contested Statehood. Kosovo’s Struggle for Independence (Oxford: Oxford University Press, 2009) 265.

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IV. The New Boundaries in Yugoslavia

It is therefore somewhat surprising that, notwithstanding the principle of self-determination,

the dismemberment of the SFRY did not bring about a complete redesign of the map

according to ethnic criteria, except for Slovenia where the boundaries as they had been drawn

in the SFRY corresponded almost perfectly to the ethnic distribution of the population. In

Croatia and in Bosnia-Herzegovina, by contrast, a large percentage of the population had

another ethnic background than the dominant group. But this factual situation did not lead to

abandoning the boundaries inherited from the SFRY. The Badinter Commission,12 established

by the European Community with the mandate to help the new political forces in their

endeavours to find a satisfactory solution to the problems of succession, proceeded from the

assumption that international law provided a ready-made rule, namely the proposition: uti

possidetis.13 Uti possidetis, developed in Latin America in the early 19th century at the

moment of the disintegration of the Spanish colonial Empire, means that the existing internal

boundary lines are automatically converted into definitive international boundary lines. The

International Court of Justice has applied uti possidetis also for border disputes in Africa,

without demonstrating persuasively that it provides satisfactory recipes for settling any

succession problems.14

In fact, serious doubts exist as to whether uti possidetis has really acquired the quality of

universal customary law. Taking up an example from the succession in the SFRY: Croats and

Serbs living in the Republic of Bosnia and Herzegovina were originally placed under the

supreme authority of the Federation. They could hence trust that their legitimate interests

would at all times be duly taken into account, if need be by the Federal Government. To be

relegated to the status of a minority in an independent State mainly inhabited by Muslim

Bosniaks is quite a different matter, a qualitative change of status. Nonetheless, the Badinter

Commission, which paved the way for the Dayton Peace Agreement DPA), opted for the uti

possidetis formula, probably for political reasons which cannot be rejected as illegitimate

from the very outset. At the time when the Commission delivered its opinions, fighting had

already flared up. Redesigning the map of Yugoslavia would have required a huge and almost

futile effort. Since in many regions the different ethnic communities lived side by side, it

would have been necessary to scrutinize the territorial classification village by village, and no

12 Official name: Arbitration Commission. Robert Badinter, former French Minister of Justice and President of the French “Conseil constitutionnel“, was the President of the Commission.13 Opinion No. 2, 11 January 1992, ILM 31 (1992) 1497, para. 1(2).14 Frontier Dispute, ICJ Reports 1986, 554, at 567, para. 26.

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viable answers could have been given in cases of truly mixed communes.15 The method

chosen was, accordingly, not just “une solution de facilité”, but a serious effort to secure

peaceful relations among the different groups. The Commission successfully averted the

danger of stirring up fighting with a view to enforcing a specific territorial assignment of the

localities in borderline areas.16 The same considerations prevailed during the negotiations at

the Dayton air base which eventually made the determinations with which we are still

confronted today.

V. The Need for Overarching Structures

1) General Considerations

Carving up the territory of the SFRY and accepting at the same time the destruction of any

overarching structures led inevitably to outright negative consequences. Strict

departmentalization carries with it many disadvantages. According to traditional concepts, the

power of a State is confined to the territory within its borders, and many rights are granted

only to citizens. This is self-evident with regard to truly political rights, in particular the right

to vote and to hold office in State institutions. But also freedom of movement exists only

within the territory of the State of which the person concerned is a national. Foreigners can of

course be admitted, but they are normally subject to strict regulations about immigration,

about sojourn and freedom to engage in employment. Likewise, trade, financial operations

and freedom to provide services may be curtailed in many – and sometimes highly

sophisticated – ways. No State can on its own initiative extend such rights and freedoms

beyond its borders. Consensual solutions must be sought to secure intercourse beyond

borders. The inconvenience of fragmentation is felt all the more strongly the smaller the

mosaic of new States is. In countries like Macedonia or Kosovo no profitable industries can

be established if no opportunities of producing for larger markets exist. In Kosovo, the local

markets are tiny since the number of inhabitants is low – notwithstanding a steady tendency to

the rise - and since the available incomes are modest, sometimes inexistent. Thus, just for

economic reasons the concept of a closed commercial State in the sense advocated by Johann

Gottlieb Fichte17 proves frankly absurd under such circumstances. In the world economy of

today, production of scale is a necessity for survival. Bread may be baked even in the smallest

community. But any product of a slightly higher level of technical refinement requires open

borders and contacts with buyers in a wider area of demand.

15 Polyvannyy (above note 6) 187 speaks of the “impossibility of devising just state borders“.16 See Stefan Oeter, “The Dismemberment of Yugoslavia: An Update on Bosnia and Herzegovina, Kosovo and Montenegro“, GYIL 50 (2007) 457, at 495 s.17 Der geschlossne Handelsstaat, 1800.

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There is no need to dwell at length on these trivial facts of life. Everyone also knows that they

led the Western European nations in the early fifties of the last century to join together,

initiating the European integration process which has by now reached its culmination point in

the European Union of 27 members. The Union has found, as it appears, a trick, a panacea in

pooling the economic forces of its members without compelling them to abandon their

sovereignty. Indeed, the Union, although it has “citizens” who enjoy the right of freedom of

movement in its entire territory, has not become a State, it still remains in the status of a

highly developed international organization, for which the German Constitutional Court

coined the term of art “Staatenverbund”.18 The integration process has even gone so far as to

stir up fears that national sovereignty might lose its substance, becoming a hollow concept

without any real meaning. It was therefore necessary to stipulate in the Treaty on European

Union that the national identity of the member States had to be respected by the Union

(Article 4). Indeed, a delicate balance has been reached where every little step ahead might

entail an incurable preponderance of the centripetal forces. The German Constitutional Court

has even sought to demarcate the outer limits of the integration process by identifying certain

areas which must, at all cost, remain under national jurisdiction.19 This static approach has not

met with a great deal of approval. But the development in the European Union shows that a

dialectic balance can be found, that seemingly irreconcilable elements are susceptible of being

reconciled. On the one hand, the European Union is founded on strong independent polities,

its member States, who have not foregone their sovereignty and still remain masters at home.

On the other hand, almost all of the subject-matters where joint and co-ordinated action in a

transnational perspective is necessary have been transferred to the Union level where all the

members participate in the decision-making process on a basis of parity, of course to some

extent adjusted to demographical factors in the Council and in the European Parliament where

account has to be taken of the basic democratic requirement of: one man, one vote.

2) Joining the European Union

For the successor States of the former SFRY joining the EU might with one strike dispose of

most of the problems they are currently experiencing (“EU-ization”). And they are all eager to

take that step but, as everyone knows, only Slovenia has hitherto succeeded in reaching the

18 Judgment of 12 October 1993, BVerfGE 89, 155, at 188, translated as “inter-governmental community” in ILM 33(1994), 395, at 423 and as “association of sovereign States” in the judgment on the Treaty of Lisbon, 30 June 2009, BVerfGE 123, 267, English translation: http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html, headnote 1.19 Judgment of 30 June 2009, ibid., 358; translation: para. 249.

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coveted goal while Croatia is fairly close to the gate. Becoming a member of the EU is no

capitis diminutio. If a State accepts exactly the same kind of legal restraints as countries like

France or the United Kingdom, recognized sovereign States, it does not thereby abandon its

full status under international law. EU member States do not become unfit for membership in

the United Nations, the world organization of sovereign States. Joining the EU has the further

advantage for any State that it becomes an equal partner in a community of in any event more

than 27 States with no hegemonic aspirations on the part of any of them. Frequently, reference

is made to the axis Paris-Berlin but this axis has no institutional configuration and is largely

counterbalanced by the smaller members. Its only political function is to ensure the

advancement of the integration process. Accordingly, whoever sits under the protective

umbrella of the EU needs not fear that his statehood might be negatively affected.

Additionally, by being able to take an active part in all of the activities of the EU, a State can

exert a determinative influence on the policies of its neighbours, something it could never

obtain by following traditional diplomatic channels. Would anyone listen to the voice of

Luxembourg were it not for its status of a member of the European Union? Will one day

Kosovo enjoy the same political weight?

Obviously, one should not confine the focus of attention to the economic and political

dimensions of the European Union only. The Union has also become a common space of

democracy and human rights, effectively supported by the two Luxembourg Courts which are

endowed with power to control any governmental activities in the member States as to their

conformity with the founding treaties. It would appear that the European Court of Human

Rights, which also reviews governmental activities to their full extent but in respect of their

conformity with the European Convention on Human Rights, has not been able to overcome

the structural problems which impede building a promising future in some of the Post-

Yugoslav States. It does not require transboundary cooperation, being confined to ascertaining

whether individual actions taken by any State organ have breached vel non commitments

flowing from the European Convention on Human Rights. The Convention, although its sets

forth all the essential components of a liberal democratic constitutional order, and although

the Strasbourg Human Rights Court works to the point of exhaustion, delivering thousands of

decisions per year,20 lacks the necessary political clout to enforce the human rights philosophy

of the Convention in a sweeping manner.21 Thus, to give a drastic example, it hat not been

20 In 2010, 2607 full judgments were delivered and 38,576 additional cases were disposed of by other means, see European Court of Human Rights, Annual Report 2010, 125.21 It is interesting to note that from all States parties to the ECHR Montenegro has the highest number of cases per capita (4.82% per 10,000 inhabitants), see ECtHR, Annual Report 2010, 140. In absolute figures, Russia has

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able to impede the gradual erosion of the rule of law in Ukraine.22 It operates like an outside

force while integration into the structures of the European Union makes every member an

insider who shares responsibility for the full implementation of the purposes and principles of

the Union. Therefore, high hopes are generally placed in becoming members of the European

Union although the truly democratic heart cannot implanted from outside, it must take its beat

from internal forces.

Unfortunately, the door to the European Union is closed for the time being. As long as Serbia

and Kosovo have not settled their mutual relationship, they will not get access to the

European Union23 – and this obstacle stands also in the way of the other candidates to

Brussels. One may call this a paradoxical situation since after admission the territorial

problems would be eased to a significant extent. In other words, the most promising strategy

for addressing the dispute cannot be resorted to before the dispute has not been resolved.

However, from the viewpoint of the Union the reluctance to burden itself with a territorial

controversy appears to be fully justified. The Union’s capacity to act depends on the harmony

and unity among its members. Bilateral tensions can entail the most serious difficulties for the

integration process, all the more so since even under the treaties in their Lisbon version a

considerable number of decisions must be taken by unanimity. In those instances, every

member State has a veto right, and this leverage can always be used for selfish purposes. The

prospect of a structural paralysis is particularly worrisome in the case of Bosnia and

Herzegovina where decisions of the Presidency generally require unanimity.24 The system of

judicial control under the treaties does not provide any defences against such abuses. How to

vote in the Council is a matter exclusively under domestic competence and the grounds for a

negative or a positive decision remain outside any judicial scrutiny.

3) Interim Arrangements

Do the current outsiders – Bosnia and Herzegovina, Croatia, Kosovo, Macedonia, Serbia and

Montenegro – have to wait in front of the closed doors before finally, par la grâce de dieu,

they may be admitted to the bloc of States that has become hesitant regarding its enlargement

policy, in particular under the impression of the Euro crisis? No, this is not an imperative.

the highest number of pending cases (40,295), ibid., 126.22 On 31 December 2010, there were no less than 10.450 pending cases against Ukraine, see ECtHR, Annual Report 2010, 127. In 2010, 109 judgments were handed down against that country, of which 107 ended with a “conviction”, ibid., 131.23 Henri Bohnet & Johannes Gold, “Serbia and Kosovo: Status Disputes and Membership”, KAS International Reports 1/11 (2011) 41.24 Constitution of Bosnia and Herzegovina, ILM 35 (1996) 117, Article 5(2). Highlighting the institutional deficiencies: Oeter (above note 16) 488 s.

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First, it must be acknowledged that the European Union has developed a policy of regional

cooperation for the Western Balkans.25 However, this policy, which seeks to prepare the

peoples of that region for accession proper, is only a weak Ersatz for full membership. It is

true that within its framework important amounts of money have been granted by the Union.

But the States concerned continue to remain outsiders, not being able to make their voices

heard in the decision-making processes of the Union. Furthermore, they are still lacking the

collective support of the other members.

Self-help may provide many remedies. In particular, freedom of movement and reduction of

trade barriers are in the hands of every government, provided that a consensus on a limited

degree of common purposes and principles can be reached. This really seems to be the

decisive issue. Is there enough common ground that would permit to establish provisional

arrangements and mechanisms in the antechamber of the European Union? Making

boundaries permeable is possible also outside the European Union, and it should be all the

more feasible on the territory of the former State which encompassed all the peoples which

have by now attained their independence. This is indeed one of the goals of the EU policy of

regional cooperation: “to encourage the countries of the region to behave towards each other

and work with each other in a manner comparable to the relationships that now exist between

EU Member States.”26 Whether this is only a lofty ideal or at the same time a growing fact of

life cannot be evaluated by the present author.

Apart from the joy of independence, history has also taught the peoples in the Balkans many

bitter and worrisome lessons. To wage war is not the right answer to the problems to be

addressed. If our judgment is correct, in particular the peoples on the soil of the former

Yugoslavia have a deep longing for peace. They – or at least vast majorities, not taking into

account the protagonists of ethnic ideologies - know that to challenge boundaries that were

drawn rather arbitrarily in 1995 does not advance their cause. They also know that any human

community lives within a territorial context which it cannot choose freely. Thus, currently the

time seems to be ripe for accommodation and compromise, where improvements can only be

sought through peaceful means.

25 See the document published by the European Commission on the internet: http://ec.europa.eu/enlargement/enlargement_process/accession_process/how_does_a_country_join_the_eu/sap/history_en.htm.26 Ibid.

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On the other hand, it is obvious that no grandiose concept is likely to be devised and

implemented. Accommodation and compromise are never fully appreciated and outright

rejected by purists striving for ideal solutions. Croatia, whose negotiations with the European

Union are approaching closure,27 will not wish to embark on a common undertaking which

might risk delaying its accession to the Union. The doubts looming over the future of Bosnia-

Herzegovina may also impede re-establishing closer links with their neighbours to the east.

No well-founded appraisal can be made of the complex trilateral situation between Albania,

Kosovo and Macedonia. The core problem consists certainly of the relationship between

Serbia and Kosovo. Here, however, some rapprochement should be possible although Serbia

has not yet recognized the independence of Kosovo. In the interest of the people concerned,

arrangements or modi vivendi are always possible, notwithstanding a deep divide on core

issues. The Federal Republic of Germany, the former West Germany, had a long tradition of

such arrangements with the German Democratic Republic in securing a modest degree of

freedom of movement for West Berliners in spite of the fundamental differences of view on

the status of Berlin. Many Kosovars still live in Serbia, mostly dispersed in big cities, and a

considerable part of the Kosovar territory with Serb population has not be brought under the

effective control of the governmental authorities in Pristina. The need to squarely address the

border crossing problématique is obvious. In this perspective, it is encouraging to learn that

Serbia and Kosovo are to begin negotiations during this month, accompanied by a political

adviser to EU foreign policy Chief Catherine Ashton.28

This is the first result of this inquiry. Pragmatic, tentative solutions for transitional periods are

possible if nationalistic emotions are resolutely cast aside. Issues of status will not be

compromised by such arrangements.

4) New Long-Term Governmental Structures

The second line of reasoning goes in the same direction but it has a different focus. The role

of the State as a guarantor of peace, law, order and well-being has been put to the test in the

territory of the former Yugoslavia in the most diverse ways. Likewise, the form of

government has shown multifaceted faces. It seems to be worthwhile inquiring what can be 27 In December 2010, 28 out of 35 chapters of negotiation were closed, see http://ec.europa.eu/enlargement/pdf/enlargement_process/accession_process/how_does_a_country_join_the_eu/negotiations_croatia_turkey/overview_negotiations_hr_en.pdf. However, the European Commission’s Interim Report on Reforms in Croatia in the Field of Judiciary and Fundamental Rights, COM(2011) 110, 2 March 2011, sounds a rather cautious note.28 European Voice, 3 March 2011, p. 4. See also Michael Martens, “Diesmal mit Beckenbauer. Erstmals Gespräche zwischen Belgrad und Prishtina seit der Unabhängigkeit des Kosovo”, Frankfurter Allgemeine Zeitung, 9 March 2011, 10.

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learned from that history. The current configuration of not less than seven independent States

with Albania as a closely related neighbour would appear to be an irrevocable fact of life.

From the very outset, however, Slovenia may be discounted from any planning for future

political structures since it has already found its home in the European Union, and likewise

Croatia sees its immediate future in the west, not to its east. For the remainder of the group

imaginative and constructive concepts with at least mid-term viability should be devised.

a) A Dictatorial Regime?

In the SFRY, the essential functions of government were in the hands of a (soft?) dictatorship.

Tito kept the reigns of power, and the specific features of Yugoslav socialism permeated the

entire system of government. This is an experience the revival of which should be excluded

under the conditions of the 21st century. What may still be a viable experiment in Belarus and

Russia, does not hold true for the countries of the Balkans that have increased their contacts

with the liberal democracies of the West. Milosevic, attempting to slip into the shoes of Tito,

steered his country into a major disaster. Yugoslavia will never be reunited under the sole

authority of one single person or other dictatorial body.

b) A System of Balance of Power?

Apparently, relying on the self-regulating forces of a society of independent sovereign States

is hardly advisable. The strategy of a European power balance, practiced from the early 19 th

century into the 20th century, led Europe into World War I. In view of the wars that followed

the demise of the socialist system of government in 1990 its prospects of success are slim also

in the territory of the former Yugoslavia, notwithstanding the increased strength of the

international regime prohibiting any resort to armed force. Some presence of the international

community, represented mainly by the European neighbours, would therefore appear to be

indispensable as clearly shown by the existing situation on the ground.

c) International Supervision and Co-ordination

As already hinted, all of the Yugoslav successor States would best be served by admission to

the European Union. On the one hand, sovereignty would be maintained. On the other hand,

the European Union would provide the anchor of stability which is currently lacking. By

contrast, placing individual States under special guardianship carries inevitably with it some

element of discrimination which it is difficult to justify with regard to the principle of

democratic self-determination. The two atypical situations of that kind which have in fact

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arisen on the territory of the former Yugoslavia are well known, namely Bosnia-Herzegovina

and Kosovo. In spite of many similarities, the international regime under which they live

requires a differentiated assessment.

aa) The case of Kosovo must appear as amazing for anyone who studies the general doctrine

of the State. Kosovo exists under – or on the base of - three layers of legal instruments that all

set out, to a greater or lesser extent, binding instructions for the governmental institutions, and

no clear hierarchy of legal norms can be perceived, something which the king of positivism,

Hans Kelsen,29 would have utterly resented. Lawyers normally love clarity. They work in

accordance with a yes – no scheme: either something is unlawful or it is not. Medium answers

in the sense of: practice will show, are not appreciated. This tendency stems of course from

the judicial function committed to lawyers: judges are invariably required to work under the

compulsion of not being allowed any denial of justice. Their world does not permit any grey

zones, any muddling through. Their only escape route is to contend that a specific issue is a

“political question”, something to which no fitting legal answer can be given. The Supreme

Court in the United States has created for itself this comfortable way out. Likewise, the

International Court of Justice may choose not to respond to a request for an advisory opinion30

– but it has in fact never refused to provide a substantive answer. By contrast, in Europe the

“happy days” of “political questions” may be counted under the increasing pressure of human

rights and the rule of law.

The first layer of legal norms is constituted by the Constitution of Kosovo of 15 June 2008.31

According to Article 1(1) of the Constitution, Kosovo is “… an independent, sovereign,

democratic, unique and indivisible State”. Hence, Kosovo claims to enjoy the same status as any

other State member of the United Nations. In fact, Article 2 reflects this aspiration in an even

more marked fashion:

“1. The sovereignty of the Republic of Kosovo stems from the people, belongs to the people and is exercised in compliance with the Constitution through elected representatives, referendum and other forms in compliance with the provisions of this Constitution.2. The sovereignty and territorial integrity of the Republic of Kosovo is intact, inalienable, indivisible and protected by all means provided in this Constitution and the law.3. The Republic of Kosovo, in order to maintain peace and to protect national interests, may participate in systems of international security.”

29 We confine ourselves to mentioning his Reine Rechtslehre (Wien: Franz Deuticke, 2nd ed. 1960).30 Statute of the ICJ, Art. 65(1).31 http://www.kushtetutakosoves.info/repository/docs/Constitution.of.the.Republic.of.Kosovo.pdf.

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No mention is made throughout the text of the Constitution of any constraints limiting the

sovereignty of Kosovo.

And yet, the independence of Kosovo was proclaimed on 17 February 200832 while Security

Council Resolution 1244 (1999) was still applicable which “reaffirmed” in its preamble the

“commitment of all Member States to the sovereignty and territorial integrity of the Federal

Republic of Yugoslavia”. Additionally, operative paragraph 10 of Resolution 1244 specified that

the aim pursued was to enable the people of Kosovo to “enjoy substantial autonomy within the

Federal Republic of Yugoslavia”. According to this text, Kosovo was still a province of

Yugoslavia, provided that Resolution 1244 had survived the declaration of independence – which

the United Nations did not actively oppose. In fact, there can be no serious doubts that Resolution

1244 has not lost its legal force. The Declaration of Independence explicitly mentions it (para. 5)

and acknowledges the restrictions it entails for Kosovo, although changing the emphasis: the

representatives of the people who drafted and proclaimed the Declaration “invite and welcome”

both UNMIK and KFOR, thus making it clear that the presence of the UN-mandated units will

owe their right to be deployed on Kosovar soil to a free decision of the Kosovar people and not to

any foreign authority.

Additionally, the Declaration of Independence declares its agreement with the Ahtisaari plan that

had been elaborated with a view to setting the benchmarks for the final solution suggested in

Resolution 1244. Lastly, it also acknowledges the EULEX mission established by the European

Union to assume the functions which the world organization had reserved to UNMIK.33 As is well

known, in this respect the ambition of the Europeans to replace UNMIK has failed. In the Security

Council, Russia objected to any change. Accordingly, UNMIK still exists formally at least

although its personnel has been significantly reduced.34 On its website, UNMIK acknowledges

that it has moved back from an executive role to one of monitoring and support to local

institutions. Given these circumstances, EULEX operates de jure under the auspices of

UNMIK, which means: under the authority of the Security Council.35 This basic feature is not

acknowledged in the founding instrument of EULEX,36 which was adopted a few days before 32 http://www.assembly-kosova.org/?cid=2,128,1635.33 In fact, the Declaration had been drafted in conjunction with, and checked, by key governments – not all! - interested in the matter, see Marc Weller, Contested Statehood. Kosovo’s Struggle for Independence (Oxford: Oxford University Press, 2009) 231.34 See the latest report: UN doc. S/2010/562, 29 October 2010.35 On the complex legal position see Robert Muharremi, “The European Union Rule of Law Mission in Kosovo (EULEX) from the Perspective of Kosovo Constitutional Law”, ZaöRV 70 (2010) 357, at 365-373; Erika de Wet, “The Governance of Kosovo: Security Council Resolution 1244 and the Establishment and Functioning of EULEX”, AJIL 103 (2009), 83-9636 Council Joint Action 2008/124/CFSP, Official Journal of the European Union L 42/92, 16 February 2008.

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Kosovo’s declaration of independence on 4 February 2008, but is now openly mentioned in an

internet description of the identity of EULEX and its mandate.37

In sum, Kosovo as a State lives in a complex situation,38 which is not an unhappy one, however,

as far as the legal position is concerned.39 Its sovereignty suffers considerable curtailments. But

such restrictions do not really hamper the capacity of the State concerned to actively manage its

own affairs. Again, Germany may be referred to as an illustrative parallel example. Although

important issues of Berlin and reunification remained under the jurisdiction of the Allied Powers

from 1955 to 1990, West Germany, the Federal Republic of Germany, and at the same time the

German Democratic Republic, could become members of the United Nations in 1973. Essentially,

the Germans were able to frame their own policies both internally and externally. The same is true

today of Kosovo. The country has its own government, its administrations and judiciary are

staffed by Kosovars. Although the international control mechanisms may sometimes be hard to

live with, they do not cause the same kind of irritation and hardship as the custodianship of a

foreign country. In particular, the international regime has the additional task of securing the

existence of Kosovo as a State. Without the strong element of international assistance, Kosovo

could not yet survive. Thus, there can be no doubt that the complex governmental structure as a

blend of national and international components is supported by the large majority of the Kosovar

people, the Kosovar Albanians. The constitutional framework corresponds accordingly to the

basic constitutional tenets of the present-day legal order as required by internationally recognized

principles.40

Our judgment is not the same for Bosnia and Herzegovina. Under the Dayton Peace Agreement of

1995 (DPA), Bosnia was established as a State under international supervision with a High

Representative selected by the international community (Peace Implementation Council), holder

of the highest power in the country.41 Additionally, the Security Council acts as a supreme

guardian of peace and order in the country.42 The people of Bosnia and Herzegovina have not

37 http://www.eulex-kosovo.eu/en/info/whatisEulex.php: “EULEX works under the general framework of United Nations Security Council Resolution 1244”.38 See also Oeter (above note 16) 510-513.39 The most serious problems adversely affecting Kosovo are poverty, a high rate of unemployment (45%) and widespread common crime, see the flashlight on the situation by Bohnet & Gold (above note 23) 52-56.40 As it appears, the Kosovo Constitutional Court has not yet had an opportunity to pronounce on the hierarchy of the applicable legal norms.41 Dayton Agreement, 14 December 1995, Annex 10, ILM 35 (1996), 75, at 147. The powers of the High Representative were increased by a resolution of the Peace Implementation Council in Bonn in December 1997, UN doc. S/1997/979, Annex, 16 December 1997. Since February 2002, the High Representative discharges at the same time the functions of the EU Special Representative in Bosnia and Herzegovina. For a detailed description of his powers see Karin Oellers-Frahm, “Restructuring Bosnia-Herzegovina: A Model with Pit-Falls”, Max Planck Yearbook of UN Law 9 (2005) 179, at 206-212.42 For the latest affirmation of that authority see Resolution 1948 (2010), 18 November 2010.

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been able to choose their Constitution. It was virtually imposed upon them by virtue of the DPA. 43

The main raison d’être of the complex constitutional structure of the State lies in the wish of the

international community to keep Bosnia-Herzegovina as one State, not dividing it into its

components according to ethnic affiliation. A State of the Muslim Bosniaks alone would have

been of such small dimensions that its existence as a viable State might have been in danger. On

the basis of the information available on the internal development of Bosnia and Herzegovina,44

any outside observer must draw the conclusion that the three ethnic groups have not yet made

their peace with one another.45 If they were free to take their own decisions, the Serbs in the

Republika Srpska would join Serbia46 while the Croats in the Federation would prefer to join

Croatia. However, the implementation of such wishes would entail enormous problems since,

although ethnic cleansing has taken place on a vast scale, in many parts of the country the three

ethnic groups still live largely in mixed settlements. The dissolution of Bosnia and Herzegovina

would inevitably lead to new waves of displacement of people. Therefore, the compromise must

be kept notwithstanding the exceedingly complex character of the constitutional order. It is true

that the continuous tensions between the different ethnic groups and also between the High

Representative and the Government of Bosnia and Herzegovina47 shed a dark light on the ability

of the international community to discharge its supervisory task.48 Yet the tensions are mainly to

be explained by the malfunctioning of the central institutions – which again is to be attributed to

the structure of the country with its different ethnic groups where democracy seems to have been

replaced by ethnocracy.49

How could a viable solution be found for the malaise in Bosnia and Herzegovina? The model of

“civic nationalism” to be emulated exists. It is Switzerland where since more than two hundred

years different population groups coexist peacefully with one another. Switzerland provides ample

43 This was explicitly found in the judgment of Sejdic and Finci (above note 1) para. 6.; see also Oellers-Frahm (above note 41) 188 s., 194 s.44 See, for instance, Joseph Marko, “Constitutional Reform in Bosnia and Herzegovina 2005-06”, European Yearbook of Minority Issues 5 (2005/6) 217, at 209-212; Oeter (above note 16) 490-493.45 For a flashlight on the situation see Sabina Wölkner & Ivana Marić, “Bosnia and Herzegovina after the Elections”, KAS International Reports 1/11 (2011) 24-40.46 The advisory opinion of the International Court of Justice of 22 July 2010, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, may have opened the way for the people of the Republika Srpska to join Serbia. For comments on that opinion see the contributions in Leiden Journal of International Law 24 (2011) 71-161: Théodore Christakis, 73-86; Olivier Corten, 87-94; Anne Peters, 95-108; Marcelo Kohen and Katherine Del Mar, 109-126; Marc Weller, 127-147; Ralph Wilde, 149-154; Hurst Hannum, 155-161.47 See Niels van Willigen, EU conflict management and international administration in Bosnia & Herzegovina and Kosovo, http://www.allacademic.com//meta/p_mla_apa_research_citation/3/1/2/5/7/pages312579/p312579-1.php.48 Van Willigen, ibid., 14, speaks of the “persistence of two competing and mutually exclusive value systems: the domestically dominant ethnic nationalism and the internationally imposed civic nationalism.”49 In principle, the decision was taken to abolish the institution of the High Representative. To date, however, the responsible political bodies are of the view that it should be kept.

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evidence that differences of culture and language are not necessarily conducive to internal

tensions and disharmony. What is decisive is the spirit of tolerance and good neighbourhood

which is not a natural plant but which must be cultivated and taken care of. Bosnia and

Herzegovina could become the model of a State showing that indeed, guided by an ideal of peace

and justice, people with diverse cultural backgrounds - and who are not complete strangers for one

another - are able to share a common destiny. Obviously, all groups of the population would have

to emancipate themselves from their historical past where the ethnic group was considered, by

experience, as the indispensable bulwark for survival. A new confidence in the institutions of the

State, in law and justice would have to grow. Is that possible in a country which, a few years ago,

has witnessed one of the most atrocious genocides after World War II? Dino Abazovic has stated

with a marked degree of resignation that in Bosnia and Herzegovina “[c]onstitutional patriotism

simply does not exist as a concept”.50 Maybe this workshop has found provisional answers to that

delicate question.

VI. Concluding Observations

At the end of this tortuous journey through many fields of scholarship and common sense, the

three main conclusions should be resumed:

1) For the new States on the territory of the former Yugoslavia, the best solution would be their

rapid admission to the European Union. It remains an open question whether this would also be

the best solution for the European Union.

2) In the antechamber of the European Union, manifold accommodations are realistically

conceivable. In particular, citizenship and freedom of movement may be separated from one

another.

3) Long-term advice for the definitive restructuring of the political landscape is less easy to

formulate. A new spirit of understanding and tolerance, based on concepts of egalitarian justice,

cannot be imposed from above, it must grow up from the bottom.

50 “Bosnia and Herzegovina: Ten Years After Dayton“, European Yearbook of Minority Issues 5 (2005/6) 195.

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