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7 E. Eur. Const. Rev. 45 (1998)
The State as Legal Fiction

handle is hein.journals/eeurcr7 and id is 321 raw text is: special Resorts. American proposals for the constitutional and political status of Kosovo The State as Legal Fiction Robert M. Hayden I n mid-October 1998, NATO threatened to attack Yugoslavia unless it withdrew its police and secu- rity forces from the Serbian province of Kosovo, the population of which is more than 90 percent ethnic Albanian.' There is, of course, no question that the Serbian police and security forces have engaged in the brutal repression of the Albanian population of Kosovo, just as there is no question that the Albanian population of Kosovo desires independence from Serbia. There is also no question, however, that Kosovo is legally a province of the Republic of Serbia within the Federal Republic of Yugoslavia (FRY), having been incorporated into Yugoslavia following World War I and again restored to Yugoslavia, following Italian rule during World War II. The Constitution of the Socialist Republic of Serbia of 1974 specified that the Socialist Autonomous Province of Kosovo was a constituent part of the republic (Art. 1), and the Constitution of Kosovo of 1974 simi- larly stated that the province was a constituent part of the Socialist Republic of Serbia and the Socialist Federal Republic of Yugoslavia (Art. 1). Finally, the Yugoslav federal Constitution of 1974 also character- ized Kosovo as a constituent part of Serbia (Arts. 1 and 2). These seemingly unequivocal provisions led the international community to treat Kosovo as a long-established component of Serbia when the former Yugoslavia broke up, thus denying the province the right of self-determination that was granted to the republics (Slovenia, Croatia, Bosnia, and Macedonia). Nevertheless, despite its formal status as a part of Serbia, the autonomous province of Kosovo was a de facto independent entity in the post-1974 Yugoslav federation. It had its own representatives in the collec- tive bodies of the federation and its own voting representatives in the federal parliament, although these were fewer in number (20) than those of the republics (30). In addition, Serbian republican author- ities had very little competence in Kosovo, which was in effect self-governing. Thus Kosovo's autonomy within Serbia amounted to independence from Serbia in all but name. Serb frustration with what they regarded as oppression of Serbs by the ethnic Albanian government of Kosovo was used by Slobodan Milosevic to seize and consolidate power in Serbia in 1987. Milosevic's regime effectively eliminated Kosovo's autonomy through amendments to the Serbian Constitution in 1989, which were then consolidated into the Constitution--still in force-of the Republic of Serbia of 1990. In essence, since 1988, Kosovo has been ruled by its Serb minority and in the same way in which other countries govern territories where the majority of the population rejects inclusion within the state, such as Kashmir by India or the West Bank by Israel-through the heavy hand of police and military control.2 From 1989 through 1997 the Kosovo Albanian population engaged in passive resistance; but, in late February of this year, the Kosovo Liberation Army (KLA) proclaimed an armed independence struggle and began attacking Serbian police and security forces in Kosovo. Serb retaliations were brutal and aimed at FALL 1998 45

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