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Kosovo's Constitutional Fiction

PRISTINA, KOSOVO: One year after NATO's war over Kosovo, renewal is to be seen everywhere: in reconstructed houses; in the many shops opened in the ground floors of ruined buildings; in the budding cultural, intellectual, and journalistic life of Pristina. In only one area – politics – do these energies face a serious obstacle. Kosovo's political logjam is due, in part, to the inexperience of Kosovo's political parties, but it is mostly the result of a contradiction in UN Resolution 1244 which serves, for now, as a kind of constitution for Kosovo.

This document maintains the fiction that Kosovo is subject to the "sovereignty" of the "Federal Republic of Yugoslavia." In the resolution's words, the UN mission for Kosovo (UNMIK) must provide "substantial self-government for Kosovo" while "taking full account" of "the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia." Considering that it was Yugoslavia under the Slobodan Milosevic, an indicted war-criminal, which attempted genocide against the Albanian majority of Kosovo, the requirement seems akin to telling someone to jump ten feet into the air while taking into full account the need to keep his feet on the ground.

The provision, adopted to satisfy countries worried about their own potential breakaway regions (Chechnya in Russia, and Tibet in China), violates the principle, engraved in common sense if not in international law, that genocide nullifies sovereignty – that a state cannot seek to extinguish a people and yet insist on governing them.

UNMIK, of course, was not established to carry out the orders of Slobodan Milosevic and does not do so. Nevertheless, the contradiction at the heart of 1244 hinders Kosovo's administration. Consider privatization of the economy, formerly run on socialist lines. Under the Yugoslavian constitution of 1974 now provisionally used in revised form by UNMIK, industry is "owned" by parliament. (In reality, of course, the Communist Party was in charge.) However, Kosovo has no parliament, while Yugoslavia (meaning, Serbia) does. Theoretically, funds from privatization in Kosovo should go to Serbia. UNMIK scarcely intends to send money to Milosevic; yet neither, thanks to 1244, can it set up a Kosovar parliament.