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Human Rights, Sovereignty, and the Final Status of Kosovo

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Human Rights, Sovereignty, and the Final Status of Kosovo Chicago-Kent Law Review Volume 80 Issue 1 Symposium: Final Status for Kosovo: Article 11 Untying the Gordian Knot December 2004 Human Rights, Sovereignty, and the Final Status of Kosovo Bartram S. Brown IIT Chicago-Kent College of Law Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation Bartram S. Brown, Human Rights, Sovereignty, and the Final Status of Kosovo , 80 Chi.-Kent L. Rev. 235 (2005). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol80/iss1/11 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. HUMAN RIGHTS, SOVEREIGNTY, AND THE FINAL STATUS OF KOSOVO BARTRAM S. BROWN* IN TRO D U CTIO N ................................................................................................ 236 I. BASIC BACKGROUND ON KOsOvA/KOSOvO ................................................ 238 II. THE PRINCIPLE OF SELF-DETERMINATION: ISSUES AND A PPLICA B ILITY ............................................................................................ 240 A. HistoricalDevelopment of Self-Determination..................................... 240 1. The Wilsonian National Model of Self-Determination .................... 241 2. The Post-WW II Decolonization Model of Self-D eterm ination ........................................................................... 244 3. The Post-Cold W ar M odel ............................................................... 247 B. Ambiguities Inherent in the Concept of Self-Determination ................. 248 1. D efining a People ............................................................................. 248 2. Does a "People" Really Have a Right to External Self-D eterm ination? ........................................... .. .. .. .. .. .. .. .. .. .. 250 C. Possible Forms of Self-Determinationfor Kosovo ............................... 251 1. Independence and Sovereignty ......................................................... 251 2. Reintegration of Kosovo into Serbia ................................................ 252 3. Intermediate Possibilities, Including Autonomy and the Statu s Q uo......................................................................................... 252 III. CAN ANYONE SOLVE THE PROBLEM?: PATHS TO THE REALIZATION OF SELF-DETERMINATION FOR KOSOVO ............................ 254 A. The Possibilityof a Negotiated Solution ............................................... 254 B. Does the Security Council Have the Legal Authority to Award Sovereignty to Kosovo? ............................................................. 256 C. PoliticalAspect: The Reluctance of UN Members to Impose External Decisions on Issues of Sovereignty and Territorial Integrity ................................................................................................ 2 5 8 1. H istorical Perspectives ...................................................................... 258 2. Politics of the Current Security Council ........................................... 259 3. The Evolving Practice of New State Recognition and Its Relevance to Kosovo's Final Political Status ................................... 261 * Professor of Law and Co-Director, Program in International and Comparative Law, Chicago- Kent College of Law, Illinois Institute of Technology; Visiting Fellow, 2004, Lauterpacht Research Centre for International Law, University of Cambridge, U.K. 235 CHICAGO-KENT LA WREVIEW [Vol 80:235 IV. A HUMAN RIGHTS BASED PERSPECTIVE ON SELF- DETERM INATION FOR Kosovo .................................................................. 264 A. Sovereign Rights in Context: The Transformation and Dism em berm ent of a State .................................................................... 266 B. When Sovereign Rights Must Yield: A Failure of Just and Effective Guaranteesfor Minority Rights ............................................. 268 C. Compromise May Be Necessary to Preserve Minority Rights .............. 270 V. OBSERVATIONS AND CONCLUSIONS RELEVANT TO FINAL STATUS ISSU E S ........................................................................................................ 2 7 1 INTRODUCTION Kosovar Albanians, as a minority within Serbia, and Kosovo Serbs, as a minority within Kosovo, have both suffered unacceptable mistreatment in recent years. This widespread misery has transformed the situation in Kos- ovo into a matter of international concern1 and Kosovo itself into a theatre of international involvement. The 1999 NATO bombing mission2 suc- ceeded in ending the Serbian persecution of Kosovar Albanians. In the aftermath UNMIK 3, the present United Nations civil administration of Kosovo was established, and KFOR4, a UN-sponsored international secu- rity force for Kosovo, precluded the Kosovo Liberation Army from com- mitting further acts of violence and terrorism against Kosovo Serbs. The cycle of revenge continues, as the Serbian minority in Kosovo remains the target of ethnically targeted mob violence. 5 The international community's reliance upon an international admini- stration and security force was only an interim solution leaving fundamen- tal issues to be decided later. The tension between Serbs and Albanians in Kosovo will not be resolved until the future political status of that territory has been finally determined. The final political status of Kosovo is ultimately a human rights issue, and a just and viable solution must balance the sovereignty and territorial integrity of Serbia with the human rights of Kosovar Albanians. At another 1. See S.C. Res. 1160, U.N. SCOR, 3868th mtg., U.N. Doc. S/RES/1160 (1998). 2. See Bartram S. Brown, HumanitarianIntervention at a Crossroads,41 WM. & MARY L. REV. 1683, 1684-93 (2000). 3. UNMIK, the United Nations Mission in Kosovo, was established pursuant to Security Council Resolution 1244. See S.C. Res. 1244, U.N. SCOR, 401 Ith mtg. 10, U.N. Doc. S/RES/1244 (1999). 4. The Kosovo Force ("KFOR") is a NATO-led international force, authorized by the United Nations, and responsible for establishing and maintaining security in Kosovo. See http://www.nato.int/kfor/kfor/about.htm (Sept. 1,2004). 5. See Nicholas Wood, Kosovo Smolders After Mob Violence, N.Y. TIMES, Mar. 24, 2004, at AI0; Nicholas Wood & David Binder, Treasured Churches in a Cycle of Revenge, N.Y. TIMES, Apr. 3, 2004, at B9. 2005] HUMAN RIGHTS, SOVEREIGNTY, AND THE FINAL STATUS OF KOSOVO 237 level, the challenge is how best to achieve self-determination for Kosovar Albanians while ensuring the rights of other groups and minorities within Kosovo. This legal and political puzzle exemplifies the clash between the traditional state-centered rights associated with territorial sovereignty and more modern notions of universal human rights. This Article argues that internal forms of self-determination, involv- ing a degree of self-government and the respect for minority rights, should be available as a matter of right, but that claims for external forms of self- determination, such as independence or the transfer of sovereignty to an- other state, cannot generally be satisfied and can rarely if ever be demanded as a matter of right. International law neither demands, nor excludes, the possibility of independence for Kosovo. It does, however, require an out- come consistent with the fundamental human rights of all concerned as well as with the maintenance of international peace and security. Those who assume that an independent and sovereign Kosovo will in- evitably materialize may well be disappointed. Those who assume that the territorial integrity of Serbia cannot be altered without its consent run a similar risk. Both the local need for resolution of the final status issue and the global cause of international peace and security will best be served if the broadest possible range of alternative solutions to final status is given careful consideration. Political negotiations between the interested parties themselves offer the best opportunity to balance the many legal and politi- 6 cal factors involved. Failing agreement between the interested parties, the UN may be forced, however reluctantly, to decide upon a solution to final status. Ulti- mately, the Security Council has the authority to implement whatever solu- tion it decides is necessary to maintain international peace and security, as well as to protect the human rights of all those concerned. 7 If it becomes necessary for the Security Council to determine the final status of Kosovo, the demonstrated willingness of Kosovar Albanian political leaders, Ser- bian leaders, and the leaders of other interested groups to engage in genuine negotiations on final status issues could be an important factor in the Coun- cil's ultimate assessment and decision. After offering a brief background on the situation in Kosovo, this Ar- ticle will examine the historical development of the idea of self- determination and consider alternative forms of self-determination and 6. The interested parties include not only Albanians and Serbs, but also a number of other smaller ethnic groups resident in Kosovo, including the Roma. 7. See U.N. CHARTER arts. 39-42 (authorizing the Security Council to decide upon whatever measures it determines are necessary to maintain or restore international
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