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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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