The crisis in Kosovo - CG (5) 7 Part II

Rapporteurs: Llibert Cuatrecasas (Spain)
and Vasili Likhachev (Russian Federation)

EXPLANATORY MEMORANDUM

1. INTRODUCTION

At its meeting in Strasbourg on 5 March last the Bureau of the Congress of Local and Regional Authorities of Europe, being concerned about the outbreak of violence in Kosovo, considered the situation in this region of the Federal Republic of Yugoslavia. After discussing the matter the Bureau of the Congress decided to publish a press communiqué and submit the matter to the Standing Committee, which was to meet in Strasbourg on the next day.

In their statement to the media the members of the Bureau firmly condemned the acts of violence committed in Kosovo. Noting that the decision taken in 1989 by the Serbian authorities to withdraw Kosovo’s special autonomous status was a major cause of the deteriorating political situation in the region, the CLRAE Bureau called on all parties to cease all acts of and incitement to violence immediately.

In addition to this appeal, which was issued on the day after the violence began, the members of the Bureau requested the immediate restoration of Kosovo’s autonomous status within Serbia. They appealed to the parties, asking the Albanian community in the province to resist any temptation to seek independence and demanding that the Yugoslav and Serbian authorities cease their acts of violence against the Kosovo Albanian population.

The Bureau of the Congress also appealed to the international community to prepare for the eventuality of intervening in situ in order to prevent the conflict from worsening or spreading.

While appealing to the various warring factions to resolve the situation, the CLRAE Bureau also made clear that it was prepared to help define a new autonomy status for Kosovo and appoint Congress representatives to a Parliamentary Assembly delegation. Among the long-term measures aimed at defusing the crisis and calming the situation on the ground, the Congress came down in favour of expediting the process of making contacts prior to setting up a local democracy embassy in Kosovo.

In view of the rapid deterioration in the situation the day after the Bureau’s meeting, the Standing Committee of the Congress met in Strasbourg the following day, the Bureau having submitted this question for consideration, and vigorously condemned the Serbian police attacks on Kosovar civilian populations. The delegates to the Standing Committee reiterated the appeal launched the previous day by the CLRAE Bureau, demanded that the international community take all necessary steps to eradicate the soaring violence in Kosovo and protect the civilian populations in the region.

Having instructed the President of the Congress to monitor developments in the situation, the Standing Committee requested the inclusion of a report on the crisis in Kosovo in the programme for the CLRAE’s fifth plenary session.

Subsequently, on 27 April, the Bureau of the Congress met in Geneva in order to continue examining the situation in Kosovo, and decided to present a report on this matter at the 5th session of the Congress.

The members of the Bureau reiterated their grave concern about the increasing intensity of the conflict, and advocated seeking possible solutions to the crisis in this part of the Balkans.

It should be noted that just before this meeting the Bureau of the Congress received a complaint from representatives of the Bosnian community of Sandjak, asking the CLRAE to include consideration of the situation in this region on the agenda of the next session of the Congress, on the grounds that the central authorities were pressurising its Bosnian population. While expressing its concern about this situation, the Bureau decided for the moment that it would mention this matter in this report, which concentrates on the crisis in Kosovo, and also comment on other matters relating to local and regional democracy in the Federal Republic of Yugoslavia.

2. ACCOUNT OF THE FACTS

The 1974 Constitution of the Federation of Yugoslavia granted a large degree of autonomy to the “autonomous socialist provinces” of Kosovo and Vojvodina, declaring them to be constituent units of the Federation which participated in Federal affairs (see below) but which remained “part of the Socialist Republic of Serbia”1. When Slobodan Milosevic, who became President of the Republic of Serbia in 1987, rose to power, he was determined to resolve “the Serbian question” and the “Kosovo problem”. This was because the Federal structure of the time was deemed “asymmetrical” and “discriminatory” solely against the Serbs, because their Republic had undergone “partition”.

The Serbian authorities abolish autonomy in the Autonomous Province of Kosovo

From 1988 onwards Milosevic proposed a series of measures aimed at abolishing the autonomous status of Vojvodina and Kosovo. This prompted a series of peaceful demonstrations and strikes, which were denounced at the time as “counter-revolutionary acts”. The amendments to the Constitution of the Federation adopted in December 1988 required the Constitutions of the Republics and the Autonomous Provinces to be harmonised, which prompted strong opposition. On 23 March 1989, operating under severe pressure, the Kosovo Assembly (which included 150 of the 183 Deputies appointed) discussed the amendments proposed by S. Milosevic and was forced to accept the transfer of power to Serbia. Virtually all the Albanian Deputies decided to abstain from voting. Sixty Deputies voted for the amendments and ten against. This fell short of the requisite two-thirds majority of the Assembly, but the Serbian President of the Assembly nevertheless declared the amendments adopted. Six days of demonstrations and riots ensued, leading to large numbers of arrests and imprisonments. A few days later the Serbian Parliament formally approved the constitutional changes, thus transferring judicial powers and control of the security forces of the Autonomous Provinces to the Central Government.

In June 1990 the Serbian Parliament adopted special measures applicable to Kosovo; the Kosovo Parliament was dissolved on 13 July 1990 and a “special” administration appointed by Belgrade was established in Priština. These extraordinary measures were a blatant violation of the Yugoslav Federal Constitution. The new Serbian Constitution, adopted in September 1990, even further weakened the institutional structure of Kosovo, which was renamed “Kosovo and Metohija”. The Kosovo Parliament only retained consultative powers, its constitutional and legislative powers were abolished, and the status of the province had henceforth to be approved by the Serbian Parliament.

Serbia continued to adopt further measures that resulted in the gradual exclusion of Albanians from the public sphere. For instance, in August 1990 the Serbian Parliament adopted a standard school curriculum for primary and secondary schools abolishing the teaching of the Albanian language, geography, art and music. At the beginning of the 1991/1992 school year the police kept Albanian teachers and students out of their secondary schools and, later, the university. A total of over 18 000 teachers and administrative officers from Albanian schools were dismissed. In September 1996, thanks to mediation by the non-governmental organisation San Eugedio, based in the Vatican, an agreement on the Normalisation of Education in Kosovo was signed by Slobodan Miloseviè and Ibrahim Rugova, but it has never been implemented. A further example is the decree of 11 January 1995 adopted by the Government of the Federal Republic of Yugoslavia aimed at preventing the purchase or sale of property owned by Serbs to Albanians, and the special incentives to Serbs to set up in the region.

The Albanian community mobilises, opting for non-violent resistance

In May 1990 the Kosovars decided to leave the Kosovo Government in protest at Serbian interference. On 2 July 1990, the new Deputies of the Kosovo Assembly, who had been elected during the extraordinary elections in autumn 1989, adopted a Declaration stating Kosovo was an independent republic and a sovereign entity within the Yugoslav Federation. On 5 July 1990, the Serbian Assembly decided to suspend the Kosovo Assembly and the province’s other governmental bodies. The Serbian authorities also took control of business, hospitals and electric power stations.

On 7 May 1990 the Deputies of the dissolved Kosovo Assembly adopted their “Declaration of Independence”. On 7 September a “Constitution of the Republic of Kosovo” was adopted. A clandestine referendum was held from 26 to 30 September 1991. 87% of the 1 051 357 electorate took part in this poll and voted 99.87% in favour of a resolution making Kosovo “an independent and sovereign State with the right of constituent participation in an alliance of sovereign republics (in Yugoslavia) on the basis of freedom and full equality among the allied republics”. A “shadow government” was set up on 23 October 1991, comprising 6 ministers (five of whom were based abroad) and responsible for tax-collecting (3% of the incomes of Albanians living in Kosovo and abroad) to finance the functioning of the alternative structures: schools, hospitals, trade and political bodies. Clandestine elections were held on 24 May 1992 without interference by the Serbian police forces, and Ibrahim Rugova, leader of the Albanian Democratic League was appointed “President” of “independent” Kosovo. A 130-member “parliament” was also appointed, but it never meets. The Kosovo Albanians have followed their “President” Ibrahim Rugova in conducting non-violent resistance and boycotting local and federal elections.

The Albanians have now consolidated an alternative system of public and private institutions. The alternative education system currently covers over 266 000 primary schoolchildren, 58 000 secondary schoolchildren and 16 000 university students. However, there is also massive emigration: an estimated 350 000 Kosovars left the province between 1990 and 1995. In January 1998, 150 000 Kosovars sought asylum in Germany and in Switzerland. Ms Ogata, United Nations High Representative for Refugees, launched an appeal to both these countries at the beginning of May to stop sending refugees back to Kosovo. Moreover, the Parliamentary Assembly of the Council of Europe denounced the forced repatriation of Albanian refugees in its Recommendation 1288 (1996).

Opposition movements intensify

In 1997 dissension began to emerge within the dominant party, Ibrahim Rugova’s Kosovo Democratic League (even though Rugova had his office renewed on 22 March 1998) and between the League and the “Kosovo Parliamentary Party” (KPP) led by Adem Demaci, who advocates a more offensive policy.

Violent opposition was organised against the Serbian regime. The (clandestine) “Kosovo Liberation Army”, founded in 1996, admitted responsibility for a large number of violent attacks such as the ambush of a unit from the Serbian Ministry of the Interior on 28 February 1998, followed by repressive measures, arrests and house searches in the Drenica region. On 25 March 1998 two Albanian villages in this area were attacked, killing and injuring many individuals. As the Albanian opposition grew more radical, the regime increased its repression on the ground (mass attack by the Serbian forces on Decani on 27 April 1998), as the latter also feared illegal importation of arms from Albania, which was hit by a serious crisis in 1997. The Kosovar Serbs began street demonstrations in Priština to put across their point of view.

Since January 1998 there have been a large number of incidents, attacks and murders in Kosovo, particularly in the Drenica region and along the border with Albania (in fact Albania has decreed a state of emergency along its borders). The number of victims of terrorist attacks and repression by the regime has been estimated at about two hundred in the last few months, the great majority of them Albanians. Further serious incidents have taken place recently. For instance, five Serbian police officers were allegedly killed on 3 May in an ambush by the “Kosovo Liberation Army” (KLA) in the Decani region. The KLA have apparently captured seven Serbs, and a petition has been submitted for their release. While the Albanian party was pursuing its aim of independence, Slobodan Milosevic, confirmed in his position by the 23 April 1998 referendum, rejected any form of mediation (which the Serbs consider as interference) by the international community in the Kosovo conflict, which is seen as a “internal matter”. The international community, on the other hand, considers that the regional repercussions of this conflict are such that it cannot possibly remain inactive; nevertheless, for the time being it can only implement gradual trade and political sanctions in the hope of changing the positions and prompting resumption of dialogue. The positions were still in deadlock on 11 May when the American special envoy, Mr Holbrook, first visited the area, but there is a chance that the deadlock will be broken in the wake of the meeting held by Mr Milosevic and Mr Rugova on 15 May.

3. THE POSITIONS OF THE VARIOUS PARTIES DIRECTLY OR INDIRECTLY INVOLVED

Perhaps we should at this point summarise the positions of the different parties, including those directly concerned, such as the Serbian authorities in Montenegro, the Albanian community of Kosovo and the Serbian minority in Kosovo, and those more indirectly concerned such as the neighbouring countries: the Albanian authorities, the "former Yugoslav Republic of Macedonia", Bulgaria, Greece, Bosnia and Herzegovina and Serbian regions such as Vojvodina and Sandjak.

It is important to ascertain these positions if we are to explore all the possible roads towards a solution.

There are several sources, including official texts, records of the Parliamentary Assembly delegation’s visit to Belgrade2 and information from the International Crisis Group (ICG) and press agencies.

In Serbia, according to an opinion poll published by the Nedeljni Telegraf on 11 March 1998, 49.2% of the population would refuse to fight for Kosovo while 28.6% would do so. This poll should be seen in tandem with a public media campaign, which unreservedly support the operations by the Serbian special police unit at the beginning of March (without showing the victims). The independent press gave a different account of the facts and was prosecuted, an affair which was denounced in Parliamentary Assembly Recommendation 1366.

Approximately 75% of the electorate took part in the referendum organised in Serbia for or against international mediation in Kosovo. 97% voted against any international mediation. The Parliamentary Assembly and the international community denounced the referendum as a manoeuvre by President Miloseviè to prevent any genuine negotiation. President Miloseviè told the Parliamentary Assembly delegation (visiting Belgrade from 12 to 14 March 1998) that the Kosovar separatist movement and terrorists supported by the international community were responsible for the conflict. He stated that the Kosovo conflict was an internal matter which had to be settled inside Serbia, and that it was unacceptable to internationalise the conflict as advocated by Mr Rugova. Invitations had been sent out with a view to discussions within the framework of the FRY Constitution. He said that he was prepared to put forward proposals for reforming local structures and even mentioned the European Charter of Local Self-Government. This tallies with the Serbian Government’s declaration of 10 May condemning terrorism in Kosovo and proclaiming that the problem had to be solved within Serbia in accordance with international standards in the field of protecting the rights of national minorities.

On 18 March the Serbian President, Mr Milutinovic, launched an appeal to the leaders of the Albanian parties in Kosovo to initiate political dialogue without any preconditions. He asked the international community to refrain from any action liable to increase tension and constitute interference in Serbian internal affairs. On 24 March the National Assembly of the Republic of Serbia adopted a Declaration on National Unity affirming that while Serbia respects human rights and freedoms and the rights of minorities, it would never permit any challenge to the rights of the Serbian people to sovereignty and territorial integrity. The Declaration goes on to state that “Serbia and Montenegro, together with the Republika Srpska, are the cornerstones of the national unity embodied in the State structure of the Federal Republic of Yugoslavia.

According to the Parliamentary Assembly delegation which visited Belgrade, the positions of the Serbian political parties, including opposition parties, varies little on the Kosovo issue, as they all advocate solving it within Serbia, specifying that it must be a democratic Serbia. Only the Serbian Civic Alliance party has shown some degree of openness, by requesting, on 3 March last, that the Government give the public full information on the tragic circumstances of the conflict in Drenica (information from the ICG).

Mr Jovanovic, Minister of Foreign Affairs of the FRY, told the Parliamentary Assembly representatives that the FRY was prepared to initiate relations with the Council of Europe to accede to some of its conventions, particularly that on national minorities, and to accept an invitation solely from an international organisation prepared to admit the FRY as a member country.

Lastly, on 26 April 1998 Mr R. Markovic, Vice-President of the Serbian Government, wrote to Mr Rugova in his capacity as President of the Democratic Alliance of Kosovo with a view to initiating unconditional dialogue based on the international standards of the UN, OSCE and Council of Europe. The letter made no mention of the limits of the Serbian Constitution, but concentrated on safeguarding equal rights for Kosovo citizens, be they Serbian, Montenegrin, Albanian, Moslem, Roma or Turkish. Is this a new way forward? Does it mean that Serbia has finally agreed to discuss Kosovo’s special autonomous status without confining debate to the limits of the Serbian constitution? Time will tell.

Where Montenegro is concerned, even though the coalition parties supporting President Djùkanovic consider the Kosovo issue as an internal Serbian matter, Djùkanovic appeared on Montenegrin State television on 24 February, ie the day before the incidents in Drenica, to declare that Kosovo should be given “some degree of autonomy”. More recently the Montenegrin President has condemned the Serbian authorities for organising a referendum on international mediation, accusing them of shirking responsibilities in resolving the Kosovar problem. It is thought in some circles that if the coalition supporting Mr Djùkanovic wins the general elections in Montenegro at the end of May he could act as mediator within the FRY (information from ICG). Mr Djukanovic considered that the Yugoslav army would not let itself be dragged into the Kosovo conflict, but that if it did Montenegro would “withdraw its recruits”.

In the Albanian Community of Kosovo, the officially recognised interlocutor is the Kosovo Democratic League (LDK) headed by Mr Rugova, who was elected during unofficial elections (22 May 1998) to lead a shadow government. According to a public opinion poll conducted by the BETA agency in October 1996 (ie before the recent crisis), 88.9% of Kosovars wanted independence, but over 50% were prepared to accept the same type of autonomy as before 1990. The LDK representatives interviewed by the Parliamentary Assembly delegation in Belgrade and Priština (12-14 March) demanded independence and stated that territorial autonomy was no longer sufficient because they had been brutally robbed of it in the past. They would be prepared to accept an international protectorate as an interim solution. They refused to dialogue with the Serbian Republic and requested talks with representatives of the Federal Government under the supervision of international mediators. Mr Rugova would accordingly be prepared to take part in a public encounter in order to present the Kosovo Albanians’ negotiation programme to the population and set up a joint working group to prepare the agenda. However, the Kosovo leaders rejected the aforementioned proposal for talks without any preconditions as put forward by Vice-President Ratko Markovic on 26 April 1998 on the grounds that it contained nothing new.

In connection with the Kosovo Serbs, who account for about 10% of the population, on 13 August 1997 Mr Trajkovic, leader of the Serb Resistance Movement (SRM) said that “Kosmet” (Kosovo and Metohija) was a Serbian rather than a Yugoslav issue. The “Bozur” Serb and Montenegrin Association, whose President is Mr B. Kecman, a supporter of Mr Miloseviè and the leader of the Serbian movement in Kosovo in the 1980s, organised demonstrations in January 1998. He complained to Miloseviè that armed groups were operating in the Drenica area and demanded energetic action against them, leading to the intervention by the Serbian special police force at the end of February and beginning of March. On the other hand, on 12 March Mr Trajkovic (MRS) regretted that Serbia had “not initiated dialogue earlier, without waiting for the threat of sanctions”. The MRS had invited the Serbian leaders as long ago as December 1997 to tackle the Kosovo problem and in particular to divide Kosovo into two regions, Kosovo and Metohija. During the interviews with the Parliamentary Assembly delegation (12-14 March) Mr Trajkovic was still advancing the same argument, namely that the solution to the Kosovo problem was to regionalise and democratise Serbia. The MRS condemned violence, whether from the “Albanian terrorists” or the “Serbian regime”.

As regards the approx. 150 000 Serbian refugees from Croatia, UNHCR indicates that 20 000 were settled in Kosovo. These refugees are rather dissatisfied with this arrangement, and IGC points out that they recently organised a petition to be moved elsewhere.

The Vojvodina leaders are also monitoring events in Kosovo. Vojvodina was an autonomous province until 1988. According to the 1981 census, it comprises 56.6% Serbs and Montenegrins, the remaining 43.4% breaking down into 19% Hungarians, 5.4% Croats, and there are also Slovak and Romanian groups. On 27 February 1998 Mr M. Secey, Vice-President of the Alliance of Vojvodina Hungarians, stated that his party would support any programme giving more power to the territorial authorities in all fields, including the issues of minorities.

The 250 000 Slav Moslems in Sandjak, who make up some 80% of the population of this region, are also attempting to improve their situation, as witness the appeal forwarded to the Congress on 24 April 1998 by Mr Slijman Ugljanin, President of the Bosnian National Council (BNC) and member of the FRY Federal Parliament. The BNC denounced the alleged threats of genocide from Mr V. Šešelj, Vice-President of the Serbian Government and requested that the Congress deal with the problems of Sandjak at its 5th session. The BNC is demanding, in particular, an OSCE permanent delegation to Sandjak with “ombudsman” status.

The representatives of Montenegro, Vojvodina and Sandjak apparently disagree with the views presented by the Serbian authorities.

In view of the risk of the unrest spreading from the Kosovo crisis region, it would be useful to outline the positions taken by neighbouring countries.

In Albania, President R. Mejdani alerted the international community to the problem in Geneva on 3 November 1997 and requested that pressure be exerted to force Yugoslavia to implement the Rome agreement on education in Kosovo and that a UN force be sent to Kosovo as a preventive measure. On 20 March the Albanian Minister of Defence requested the deployment of a NATO force along the border between Albania and Kosovo (Reuters). In mid-February the Albanian Prime Minister, Mr Nano, issued declarations criticising the alternative institutions in Kosovo and inviting the Albanian community there to renounce their boycotting policies and integrate into the life of the country which they inhabited. He also condemned terrorism. More recently, after the incidents along the border between Albania and Kosovo, the Albanian authorities accused Serbia of having violated the border. Albanian army manoeuvres were announced in the north of the country.

Where the “former Yugoslav Republic of Macedonia" is concerned, a month before the incidents in Drenica President Gligorov announced that he was going to open a corridor for Kosovar refugees in the event of a serious conflict, drawing criticism from the Kosovo leaders and the Albanian community in the "former Yugoslav Republic of Macedonia". On 12 and 13 March the Albanian Democratic Party declared that “the Albanians of Kosovo, Macedonia, Montenegro and, obviously, Albania, would be united in the event of trouble”, and requested dialogue with the USA and Europe (Reuters).

At the beginning of May the Albanians organised a series of demonstrations in Skopje and other towns in the country to protest against the imprisonment of the Mayor of Gostivar, who had been sentenced to a 7-year term following the incidents on which the Congress had published a press communiqué and sent a delegation. The Albanian Democratic Party has withdrawn its elected representatives from the towns and municipalities and the Parliament.

In general, the Bosnian media and politicians in Bosnia and Herzegovina have come down in favour of the position adopted by the Kosovar Albanians (according to IGC). On the other hand, on 3 March the Republika Srpska declared its solidarity with Serbia through the voice of its moderate Prime Minister Mr M. Dodik, who sent a telegram of support. On 4 March Mr M. Krajisnik, the Serbian member of the Bosnia and Herzegovina Presidency, told the Srna agency that the Kosovo problem was not only a Serbian problem but also a “symbol of the whole Serbian people”. Deputies from the National Assembly of the Republika Srpska tabled a motion for a Resolution requesting that the Republika Srpska secede from Bosnia and Herzegovina and join Yugoslavia if Kosovo obtained independence (16 March 1998). Therefore, the Kosovo issue is obviously liable to challenge the Dayton peace process.

Two further neighbouring countries have expressed great concern about the situation in Kosovo and taken separate initiatives:

Bulgaria would like to play an active role in securing an agreement, because its Minister for Foreign Affairs, Ms N. Mihaylova, at a meeting with her colleagues from Greece, Romania, Turkey and the "former Yugoslav Republic of Macedonia", affirmed that “history has taught us that there are no internal problems in the Balkans” (Reuters). The Ministers closed their meeting by advocating full respect for human rights and freedoms for the Albanian population of Kosovo and observance of the existing borders. Ms Mihaylova suggested that the Kosovar Serbs and Albanians should exchange written proposals on the status of Kosovo and then initiate dialogue with foreign mediation. She considered that Kosovo should have extensive autonomy within the FRY.

In mid-January 1998 Greece proposed organising a meeting between President Milosevic, Mr Rugova and Mr Nano, the Prime Minister of Albania, since Greece, like the European Union, was against the independence of Kosovo. This suggestion was welcomed by the Albanians but rejected by the Kosovo Democratic League. More recently, at the end of April, the Greek Minister for Defence stated that the situation in Kosovo could well explode and that strong pressure should be exerted on both parties to enter into dialogue without any preconditions. He considered that the peoples of the Balkans were entitled to be concerned about the Kosovo issue and its possible consequences, and therefore also to join together with the international community in seeking a solution.

4. THE COUNCIL OF EUROPE’S POSITION

4.1 The Committee of Ministers

On 11 March, through the intermediary of their President, the Ministers' Deputies condemned the escalating violence in Kosovo, namely both the indiscriminate use of force by the Yugoslav police and the acts of terrorism perpetrated by certain elements in Kosovo.

The Committee of Ministers subsequently pronounced on the problems in Kosovo when considering the FRY’s application for membership on 25 March, in its reply to Assembly Resolution 1360 on 16 April and in the final communiqué of its 10th session on 5 May 1998.

In connection with FRY’s application for membership of the Council of Europe, the Committee of Ministers, meeting at Deputies level, pointed out that it saw this application as “a desire to respect the Organisation’s values – democracy, human rights and the rule of law – throughout the territory of the Federal Republic of Yugoslavia”. It added that at the same time it “considered that several aspects of the current situation in the Federal Republic of Yugoslavia, particularly in Kosovo, were a matter for great concern” (communiqué of 25.3.1998).

In its reply to Assembly Recommendation 1360 the Committee of Ministers appealed to the parties concerned to discontinue the violence and unreservedly respect human rights and fundamental freedoms in Kosovo. It also urged the conflicting parties to enter into dialogue, as this was the only way to end the crisis. The Committee of Ministers voiced its support for the initiatives launched by the international community, particularly those of the Parliamentary Assembly.

It should be noted that in its reply the Committee of Ministers specifies that the feasibility of opening a local democracy embassy in Kosovo would be considered during the examination of the general development of the LDE programme.

4.2 The Parliamentary Assembly

The Parliamentary Assembly must be given credit for having been the first to sound the alarm on the Kosovo crisis a few weeks before it broke out and for subsequently launching a whole series of energetic initiatives.

On 28 January this year the Assembly adopted Resolution 1146 on recent developments in the Federal Republic of Yugoslavia and their implications for the Balkan region. In this Resolution the Assembly notes that the deteriorating situation in the FRY was liable to have serious implications for the stability of the Balkans and “deplores” the failure of the FRY authorities to implement the democratic reforms recommended by Mr Felipe Gonzalez, the special OSCE representative. The Assembly “condemns” the repression of the Albanian community of Kosovo, “which has led to the emergence of armed resistance in Kosovo”. Moreover, the Assembly has invited this community to reject and condemn any use of violence.

When the crisis broke out, the Assembly decided to send the Ad hoc Committee of Chairmen of Political Groups to Belgrade from 12 to 14 March, and following the report on this visit on 18 March it adopted Recommendation 1360 on the crisis in Kosovo, through its Standing Committee3.

In this Recommendation the Assembly appealed to the Yugoslav authorities to immediately restore human rights and fundamental freedoms in Kosovo and firmly condemned the “excessive and indiscriminate use of force by the Serbian security forces”. It considered that the only possible solution to the crisis was one based on “greater autonomy for Kosovo, within the Federal Republic of Yugoslavia”, and requested the FRY authorities accordingly to establish “dialogue without any preconditions with representatives of the Albanian community” and to accept Mr Felipe Gonzalez as a mediator on behalf of the OSCE and the European Union.

Lastly, the Parliamentary Assembly again addressed the situation in Kosovo at its plenary session on 22 April, adopting Recommendation 1368, following a debate to which Serbian and FRY parliamentarians were invited.

In this Recommendation, which is appended to this report, the Assembly reiterates its positions and in particular asks the FRY authorities to empower its delegation responsible for talks to “discuss all options for autonomy of Kosovo within the Federal Republic of Yugoslavia ¼ going beyond the limits of the existing Serbian Constitution”. Furthermore, it requests that they accept the presence of several foreign representatives during these talks and asks the Committee of Ministers to “examine ¼ ways in which the Council of Europe could facilitate contacts and assist in talks”. Having taken note of the application for membership of the Council of Europe submitted by the Yugoslav Government on 18 March 1998, the Assembly asked the Committee of Ministers to consider this procedure “in the light of progress made by the FRY authorities in complying with the requests by the international community, notably with regard to Kosovo”.

Lastly, the Assembly invites the “leadership of the Kosovo Albanians to condemn and do their utmost to prevent the use of violence and arms trafficking“ and to “enter into talks with the delegation of the Serbian Government and the special envoy of President Miloseviè”.

5. THE POSITION OF THE INTERNATIONAL COMMUNITY

Immediately after the outbreak of violence in Kosovo, the international community reacted by condemning the use of violence by the Serbian special police forces, and called on the Yugoslav authorities and the representatives of the Albanian community to sit down at the negotiating table without any preconditions in order to seek a peaceful solution to the crisis. The institutions involved in the process of resolving the crisis – the United Nations, the Contact Group, OSCE and the European Union – adopted positions comprising several strands. Most of them concentrated on two main themes: inviting the conflicting parties to establish dialogue, including the proposed mediation by Mr Felipe Gonzalez as the representative of the European Union and OSCE, and proposals on the future status of the Kosovo region within the FRY. Accordingly, the international community considers that if the current crisis is to be resolved dialogue must be immediately established between the Yugoslav authorities and the Kosovar Albanians, with international mediation, in order to define a new autonomous status for Kosovo within the existing borders.

a) Future status of Kosovo

According to the Contact Group for former Yugoslavia, the central issue in the current crisis in Kosovo which necessitates a long-term political solution is defining the region’s future status.

Obviously, no international authority has come down in favour of independence for Kosovo. All the organisations that have pronounced on the crisis have firmly condemned any separatist tendencies and suggested seeking a solution within the framework of the current borders, in accordance with the principle of the FRY’s territorial integrity. The reason why the independence option has been rejected is plainly that it is liable to set off a chain reaction in other Balkan countries and would endanger the Dayton process. Moreover, these fears have been largely confirmed by the pronouncements described in Section 3. Also, such a solution, which is contrary to the spirit of the Helsinki Final Act and the principles of the United Nations Charter, could intensify the influx of refugees into the area. However, this does not mean that the status quo must be preserved, an option which has been clearly opposed by the international community.

The solution advocated by Mr Rugova, namely requesting an international protectorate on Kosovo for a transitional period, seems to have been disregarded by the international organisations, probably because it might prove to be a mere step towards independence.

However, autonomy status for the region within Serbia and the Federal Republic would be a valid option, one that is also backed by Serbia. The international organisations are evidently in favour of initiating dialogue between the FRY central authorities and the representatives of the Albanian community, precisely in order to define such autonomy while respecting the integrity of the FRY. Analysis of the positions of both sides would seem to confirm this thesis.

1. Contact Group for former Yugoslavia

The Contact Group, made up of the Foreign Ministers of six countries – the United States, France, the United Kingdom, Italy, the Russian Federation and Germany – was one of the first to react to the upsurge in violence in Kosovo. Meeting in London, the Group discussed the Kosovo situation and concluded with a joint declaration. The participants stressed that the central element of this text was the future status of Kosovo. Paragraphs 9 and 10 of the declaration informed the international community that the main issue at stake in the conflict was indubitably the future status of the region. The Contact Group was in favour neither of independence not of preservation of the status quo. The main thrust of any solution to the Kosovo problem must be the territorial integrity of the FRY, in compliance with OSCE standards, the Helsinki principles and the United Nations Charter. The solution should take account of the rights of all those living in the region. The six Foreign Ministers came down in favour of improving the status of persons living in Kosovo and that of Kosovo within the FRY by establishing a considerably higher degree of autonomy. They also acknowledged that such autonomy should involve effective self-government. The Contact Group confirmed this position at their meeting in Bonn on 25 March last.

The Group considered that the only way for Belgrade to overcome terrorism in Kosovo was to grant the Albanian community in this region a proper political infrastructure. The Contact Group urged the parties to establish in-depth dialogue on the region’s political status without any preconditions.

2. OSCE

In his declaration of 10 March 1998 setting out an OSCE action plan for Kosovo, the current President of OSCE, Mr Bronislaw Geremek, affirmed that an equitable solution to the crisis should preserve the territorial integrity of the FRY and take account of the Albanian community’s aspiration to autonomy, although he did not go into detail on such autonomy.

3. European Union

In its declaration of 1 April 1998 backing the EU Council’s conclusions on Kosovo, which was in fact also approved by the associated countries in central and east European and Cyprus, the European Union addressed the matter of Kosovar autonomy, adopting a very clear stance. It hoped that the talks between the Belgrade authorities and the leaders of the Kosovo Albanian community on the status of Kosovo would not result in independence or preservation of the status quo. In a declaration of 27 April last the European Union remained consistent with its original position, reiterating its attachment to the principle of the territorial integrity of the FRY. At the same time, the representatives of the EU member States, meeting in Luxembourg, noted that no progress had been made in granting Kosovo broad autonomous powers within the Federal Republic of Yugoslavia.

4. United Nations

On 31 March at its 3,868th meeting the United Nations Security Council adopted a Resolution 1160 (1998) banning all UN member states from selling or supplying arms to the FRY, including Kosovo. At the same time the Security Council affirmed the commitment of all UN member states to the sovereignty and territorial integrity of the FRY. The members of the Security Council stressed the need for a constructive dialogue on political status issues in the region. They also agreed with the proposal in the Contact Group statements of 9 and 25 March 1998 that the principles for a solution to the Kosovo problem should be based on the territorial integrity of the FRY and should be in accordance with OSCE standards. Through the Security Council, the United Nations clearly came out in favour of an enhanced status for Kosovo, which should include a substantially greater degree of autonomy.

5. Countries of South-Eastern Europe

The Ministers for Foreign Affairs of the countries of South-Eastern Europe (Bulgaria, Greece, Romania and Turkey) met in Sofia, Bulgaria, on 10 March to discuss the Kosovo crisis and devise a common stance. In the joint declaration adopted at the close of the meeting the ministers pointed out that it was necessary to seek a solution to the problem in full conformity with the existing borders. They called on all the organisations of ethnic Albanians to reject any secessionist policy and show full respect for the territorial integrity of the FRY. Addressing themselves to Belgrade, they urged the authorities to seek mutually acceptable solutions based on granting considerable autonomy to Kosovo within the FRY.

6. The G8 Summit in Birmingham (15-17 May 1998)

The Heads of State, gathered in Birmingham, issued following statement concerning the situation in Kosovo :

"The continuing violence in Kosovo has revived fears of a new Balkans war. The region has already seen too much bloodshed. A political solution to the problem of Kosovo is vital for the peace and the well-being of all the people of the region. We consider the meeting on 15 May between President Milosevic and Dr Rugova to be a positive first step. It is particularly important that President Milosevic has assumed personal responsibility in the search for a resolution of the problems of Kosovo, including its future status. We urge both sides to ensure that the dialogue now begun leads rapidly to the adoption of concrete measures to lower tensions and stop violence. Resolving the issue of Kosovo's status will be difficult but is essential for the good of all those living in the Federal Republic of Yugoslavia.

Peace and stability in Europe rest on the principles that borders are inviolable and that political change must come about through peaceful means. We reject terrorism and violence from any side to achieve political goals or to stifle dissent. The states of the region should themselves contribute to a non-violent solution to the crisis. All states should cooperate in addressing the problem of refugees and displaced persons.

We underline the importance of cooperation with the Gonzalez mission.We stand ready to promote a clear and achievable path towards the FRY's full integration into the international community. But if Belgrade fails to build on recent progress and a genuine political process does not get under way, its isolation will deepen."

b) Initiation of a dialogue

Immediately after the escalation of violence in Kosovo the international community called on the parties to the conflict to take prompt action to initiate a genuine political dialogue in search of a solution. The proposals went hand in hand with both offers of mediation and threats of sanctions against the FRY.

1. Offers to mediate

The Contact Group has declared itself ready to facilitate a dialogue between the federal authorities and the representatives of the Albanian community in Kosovo. The proposals made on behalf of the OSCE by that organisation's Chairman-in-Office, Mr Bronislaw Geremek, included an offer for Mr Felipe Gonzalez, Special Representative for Kosovo of both the OSCE Chairman-in-Office and the European Union, to mediate between the parties. The OSCE considers international mediation to be essential to the establishment of a meaningful dialogue. Mr Geremek's initiative met with considerable support from other international bodies, such as the United Nations, the European Union and the Contact Group.

So far, although backed by the entire international community, all the offers to mediate have been rejected by Belgrade, which regards the Kosovo crisis as a purely domestic affair regarding Serbia alone. The Belgrade authorities therefore maintain that negotiations with the Albanian representatives should be conducted in a strictly domestic framework without any international mediation. According to the official results of the referendum organised on 23 April on the initiative of President Milosevic, 94.73% of those who voted were against international mediation in the Kosovo conflict. It should be noted that 1.8 million Albanians in Kosovo boycotted the referendum.

As to the Albanians, who have in principle agreed to talks, their political leader Mr Rugova has on several occasions insistently called for international mediators to take part in the negotiations. The Albanians of Kosovo are ready to sit down at the negotiating table on condition that the talks take place with the federal authorities, not Serb representatives. On 24 March Mr Rugova appointed a team to prepare a negotiating platform. Mr Agani, adviser to Mr Rugova, has been appointed leader of a team of four, mandated to represent the Albanian community in the negotiations.

The international community remains convinced that an international mediator could help alleviate tension in the region and instigate a genuine dialogue on the future political status of Kosovo. According to diplomatic circles in Moscow, the Russian Minister for Foreign Affairs has proposed using the agreement reached in Northern Ireland as a model for resolving the problem in Kosovo. The same sources have indicated that when Mr Ivanov, Russian Vice-Minister for Foreign Affairs, visited Belgrade on 5 May he urged the Serbian Government to accept an OSCE presence in Kosovo as this would enable talks to commence.

All of these moves, especially the action taken by the American special envoy, Mr Holbrook, certainly facilitated the first meeting of Mr Milosevic and Mr Rugova in Belgrade on 15 May. The two men apparently agreed to enter into talks within one week, according to a communiqué issued by the Tanjug agency. Mr Milosevic considered that this initial contact “should mark the beginning of a peaceful settlement to the problems in Kosovo”. Mr Rugova said that this first meeting had unfolded in “an atmosphere of tolerance”. Mr Milosevic also stated that “it is only by political means, through direct dialogue, that human, fair and sustainable peaceful solutions can be found (¼). The solutions must be based on equality between all citizens and all national communities living in Kosovo”.

The talks are scheduled to proceed in the framework of weekly meetings. On the Yugoslav side, the “state delegation” will be led by Mr Ratko Markovic, Serbian Vice-Prime Minister, and will comprise two further Serbian Vice-Prime Ministers, Mr T. Nicolic and Mr Bojic, as well as I Sedlak, Serbian Minister without portfolio, Mr V. Kustlesic, FRY Minister, and Mr R. Rajakovcic, Yugoslav Vice-Minster of Justice. The Kosovo Albanian delegation will be made up of four of Mr Rugova’s advisers, Mr P. Nushi, Mr Bakalli, Mr F. Agani and Mr V. Suroj. Two further members will be appointed at a later date. The first meeting took place on 22 May 1998 and enabled decisions to be taken on negotiation methods. The statements of both parties appear in Appendix III to this report.

2. Sanctions envisaged

On 9 March the Contact Group proposed a number of measures to compel the Yugoslav authorities to withdraw the special police units from Kosovo and enter into a genuine dialogue, without preconditions, in order to find a political solution to the crisis. The six countries concerned asked the UN Security Council to impose a full embargo on the export to Yugoslavia of arms which might be used for repression or for terrorism. This request was acted upon by the Security Council, which in Resolution 1160 (1998) banned the sale and supply of arms to the FRY, including Kosovo. Faced with Yugoslav inertia, at a meeting in Bonn on 25 March the six powers took the view that the Yugoslav authorities were making an insufficient effort to defuse the crisis and decided on partial implementation of sanctions against Belgrade, in particular in the economic and financial field. The Contact Group had decided that other sanctions would begin on 9 May, but it has since said that it is prepared to lift them if the parties enter into genuine talks. In fact, it was around the same date that Mr Milosevic notified the international community that he was prepared to seek a compromise (according to the Dnevni Telegraf).

However, implementation of sanctions is not an end in itself for the international community. It is part of a strategy to exert pressure on Belgrade, which also includes a series of incentives affording Yugoslavia an opportunity to make the first move towards its rehabilitation as a member of the European and international organisations. On 10 March the OSCE Chairman-in-Office stated that progress by Belgrade in the dialogue with the Kosovo Albanians would allow Yugoslavia to improve its international standing, normalise relations with the OSCE and instigate co-operation with the international economic and financial institutions. The European Union also announced that it would be prepared to consider Yugoslavia's participation in the European co-operation mechanisms in a new, more positive light if Belgrade showed a genuine willingness to initiate a dialogue on Kosovo, with international mediation.

6. KOSOVO'S STATUS UNDER THE CONSTITUTION OF THE SOCIALIST FEDERAL REPUBLIC OF YUGOSLAVIA

The Kosovo and Vojvodina regions were largely self-governing until 28 September 1990, when the Republic of Serbia adopted a new Constitution effectively abolishing their autonomous status. The solution chosen at the time was intended to allow the Albanians and Hungarians the right to self-determination in their own regions within Serbia, where they constituted a majority.

The institutional organisation of the "Autonomous Socialist Provinces" was identical to that of the Republics. For example, they had their own Assembly, an Executive Council, a President, a national bank, a Constitutional Court, a Supreme Court and an administration under their own authority. Under the constitution the provinces also enjoyed limited legislative powers and the right to table motions to reform the Federal Constitution4 and to reject amendments thereto5. Articles 398 and 402 of the Federal Constitution provided that constitutional reform was possible only with the consent of all the Republics and Autonomous Provinces and that they must approve any proposed amendments.

It should also be noted that both the Autonomous Provinces and the Republics were empowered to organise "territorial defence"6 within their borders and were armed. Furthermore, a federal equalisation fund was set up to help the less-developed regions.

The provinces' autonomous status was also of importance at the federal level. The 1974 Constitution placed them on an equal footing with the Republics, by providing for their representation within all the organs of the Federation7. Their co-operation and participation in all federal matters, including tax policy, was a constitutional requisite. The Basic Principles set forth in the Preamble to the Constitution (part I) refer to peoples and nationalities enjoying "sovereign rights" within the Republics and the Autonomous Provinces8, rather than to citizens.

Articles 1 and 2 of the first part of the Constitution defined the Socialist Federal Republic of Yugoslavia as a State comprising six Republics and the Autonomous Provinces of Kosovo and Vojvodina, which were part of Serbia. The Federal Constitution moreover gave a definition of an Autonomous Province9, but stipulated that they did not enjoy the right of self-determination in matters which the Constitution of Serbia deemed to be of general interest. Article 5 nevertheless provided that the territory of an Autonomous Province could not be changed without its consent, thereby depriving Serbia of the right to reform the territorial boundaries.

Article 244 of the part of the Constitution devoted to the rights and duties of the Federation provided for participation of the Autonomous Provinces in the decision-making process at federal level, guaranteeing their representation in all the organs of the Federation. In particular, they were to have twenty seats each in one of the chambers of the Federal Assembly – the Federal Chamber – compared with thirty for the Republics. In the other Chamber – the Chamber of the Republics and Autonomous Provinces – the Republics had eleven seats each and the Autonomous Provinces eight.10 Furthermore, Article 296 of the Constitution stated that the delegations of the Autonomous Provinces should defend their own positions, not those of the Assembly of the Republic of Serbia. They were also represented, on a proportional basis, in the Federal Executive Council11, the administration, the Constitutional Court and the Federal Court. The Federal Presidency functioned on a basis of equal representation of the Republics and the Autonomous Provinces, each of which appointed a single representative12. Article 242 moreover stipulated that the Autonomous Provinces should be represented on a proportional basis in the senior ranks and high command of the Yugoslav People's Army.

The 1974 Constitution, in particular the sections devoted to Citizens' Freedoms, Rights and Duties (Articles 170 and 171), conferred important individual and group rights on the nationalities, securing everyone the right, at their own discretion, to show their membership of a people or nationality and attachment to their national culture and to use their language and writing, including in the exercise of their rights and duties, in procedures before the organs of the State, in dealings with the public authorities and in proceedings in the courts, labour organisations and municipalities (self-governing communities)13. The same rights were also secured in the sections of the Constitution concerning the rights and duties of the Federation.

Article 171 guaranteed the right of nationals of the peoples and nationalities of Yugoslavia to an education in their mother tongue within the territory of each Republic or Autonomous Province. However, it did not clearly define the type or level of education, which was to be determined by other legislation. An Albanian-speaking university was indeed established in Pristina, but was subsequently abolished by the Serb government.

It can be concluded that, under the 1974 Constitution, Kosovo was to a large extent self-governing in the political, financial, cultural and educational spheres. It must, however, be borne in mind that the former Socialist Federal Republic of Yugoslavia was not a democracy. It was organised according to the principles of the single-party system and did not hold truly democratic elections to the different tiers of government. The only direct ballot was that held to elect members of the municipal assemblies, who were chosen from a single list of candidates – that of the Communist Party – drawn up according to the party's own political interests.

Moreover, granting the Autonomous Provinces considerable rights at federal level may have been a ploy to allow Serbia – the largest of the Republics – two extra votes when major legal instruments were being passed in the Federal legislature.

The shortcomings in the implementation of the 1974 Constitution moreover became evident from the growing tension and instability in Kosovo at the time14.

The status of Sandjak under the 1974 Constitution of the Socialist Federal Republic of Yugoslavia

Sandjak is a region divided between Serbia and Bosnia and Herzegovina. The majority of the population are Muslims of Serb and Croat origin, whose ancestors converted to Islam under Ottoman rule. In former Yugoslavia the term Bosnian applied to anyone living in Bosnia but during the war the Muslims adopted it to express their ethnic origin.

Bosnia was one of the six Republics where Muslims were in the majority. From a legal standpoint, they were regarded as one of the "constituent peoples" of the Federation and enjoyed the same rights as the others. Therefore, under the 1974 Constitution, Muslims living in the Serb part of Sandjak had the same rights as those living in Bosnia and Herzegovina. As a result, the people of Sandjak were not considered to be of a separate nationality, as were the Albanians in Kosovo and the Hungarians in Vojvodina, and it was hence not necessary to grant the region autonomous status. However, with the break-up of former Yugoslavia the inhabitants of this region lost all the rights they enjoyed under the 1974 Constitution.

7. WHAT THE CONGRESS MIGHT CONTRIBUTE

7.1 Legal texts which might serve as a foundation for a solution to the problems in the Federal Republic of Yugoslavia

In Recommendation 1360 the Parliamentary Assembly pointed out that the Council of Europe has considerable expertise in areas of relevance to a settlement in the Kosovo crisis, such as human rights, minority rights, local and regional democracy and education.

The Congress is undoubtedly the competent body in matters of local and regional democracy and has also given much thought, including during the present session, to minority issues, in particular with regard to self-government and linguistic and cultural rights. This is an area where the Congress can base its work on existing legal instruments, in many cases published at its own instigation, which have already or should shortly become Council of Europe conventions.

Starting with the principle of subsidiarity, mention might first be made of the European Charter of Local Self-Government, which the Committee of Ministers has agreed should be monitored by the Congress. The guarantees afforded by this instrument in respect of the development of genuine local self-government could help to ensure that the process of government is democratic and takes place at the level closest to the people, which would be of benefit not only to the Albanian community in Kosovo but to the entire population of Serbia, or even the FRY, including Sandjak and Vojvodina.

The use of force to remove the elected authorities of Novi Pazar from office in the summer of 1997 – concerning which the Bureau of the Congress lodged a protest – shows how insecure local self-government is in Serbia. Into the bargain, the government is unwilling to acknowledge the results of the local elections of spring 1997 in a number of Serb municipalities, including Belgrade and Nîs. The Association of Free Cities and Municipalities of the Republic of Serbia, set up by the opposition-party mayors elected at the time, has moreover drawn up a bill on local self-government, on which the Congress has issued an opinion in the light of the Charter. During their talks with the Assembly delegation in March the Serb authorities mentioned that the European Charter of Local Self-Government would be one of the first instruments to which they would wish to accede if their country became a member of the Council of Europe, although it is difficult to determine what significance should be attached to this statement.

The European Charter of Regional Self-Government, which the Congress has approved and submitted to the Committee of Ministers for adoption, has been a source of inspiration for a number of States (including Poland, Slovenia and Moldova) in their regionalisation projects; it might likewise serve as a reference in defining the autonomous status of Kosovo. Paragraph 8 of the preamble to the Charter affirms that "recognition of regional self-government entails loyalty towards the State to which the regions belong, with due regard to its sovereignty and territorial integrity."

Articles 4 and 6 on the competence of regions, Article 9 on regions' participation in State affairs, Article 10 on their participation in European and international affairs, Articles 14 and 15 on regional finance and Article 16 on protection of regional boundaries might be of use to the persons responsible for drafting a new statute conferring autonomy on Kosovo, not forgetting Vojvodina and the other regions in the country. Articles 9 and 10 are of particular importance to Kosovo.

The Framework Convention for the Protection of National Minorities might of course also assume considerable importance for a settlement of the conflict in Kosovo and even Vojvodina (with its Hungarian and Croat minorities) and Sandjak (Bosnian minority). Articles 11, 12 and 13 might serve as a basis for implementation of the agreement between the leaders of the Kosovo Albanians and the Serb authorities in the sphere of education. Similarly, Article 16 affords a major guarantee for preservation of an Albanian community in Kosovo. Articles 17 and 18 should allow the development of cultural and economic links with the neighbouring Albanian-speaking communities in Albania and "the Former Yugoslav Republic of Macedonia". These contacts might be reinforced by applying the Outline Convention on Transfrontier Co-operation and the first protocol thereto. As was the case with the recent agreement on Northern Ireland, a solution to the Kosovo crisis clearly necessitates a statute conferring a significant degree of autonomy, supplemented by transfrontier co-operation agreements with the neighbouring Albanian-speaking communities. This would be in keeping with the principles which the Congress has long upheld and which were moreover acknowledged by the Heads of State and Government at the first Council of Europe summit in October 1993.

Although the Serb authorities did not cite the European Charter for Regional or Minority Languages, which recently came into force, that text might also provide a basis for and a means of guaranteeing an agreement between the Serb government and the Albanian community in Kosovo. Part III of the Charter affords an opportunity to conclude an agreement, which might also secure the linguistic rights of the Serb minority in Kosovo, not to mention the minorities in Vojvodina. That part of the Charter deals with the use of languages in education, the courts, administrative authorities and public services, the media, cultural activities, economic and social affairs and transfrontier exchanges and could be conducive to more widespread use of minority languages in these fields.

Moreover, during the present session the Congress will prepare a draft Recommendation on Territorial Autonomy and National Minorities, to be addressed to the Committee of Ministers.

The purpose of this draft recommendation is in particular to secure recognition of specific legal standards in territories where minority communities live, along with acknowledgement of their special status. It may be applicable not only to Kosovo, but also to Vojvodina and Sandjak. It is to be hoped that, in adopting this recommendation, the Committee of Ministers will also give a signal to the authorities of the Federal Republic of Yugoslavia. The text deals with regional self-government and, depending on the circumstances, different forms of local self-government, making it possible to devise solutions taking account of the specific problems of a minority community, whatever its size (see section 7.2 below).

7.2 European examples of special status

From the historical angle, a number of countries in Europe have adopted an internal organisation showing that it is possible, and sometimes necessary, to opt for a variety of solutions (ie involving different degrees of autonomy) for regions within the same State. These different forms of self-government may have their basis in different legal instruments: constitutions, statutes, treaties between a federal government and the entities concerned, etc.

Examples are to be found in States with federal, quasi-federal, regionalised and even unitarist systems of government. The cases of Russia, Spain, Italy and Finland are referred to here.

Russia

Under the new Russian constitutional system, unlike the old, the entities of the federation are fundamentally equal, whatever their type: autonomous republic, territory, region, city of federal importance, autonomous region or autonomous district. This equality applies in particular to their participation in the organs of central government (each entity has two seats on the Federation Council) and in constitutional reforms, which must be approved by the legislative organs of at least two-thirds of the entities.

On the other hand, there are some disparities in the distribution of powers between the federal authorities and the entities. For instance, only republics are entitled to establish one or more official languages. These differences are primarily due to a Russian particularity, whereby the Constitution alone does not determine the allocation of powers, since it provides that, in fields where the federation and the entities have joint authority, the Russian Federation's organs of power and those of the entities may conclude agreements establishing their respective spheres of authority and responsibilities. As, by definition, the content of these agreements varies, they lead to relatively significant disparities. Each bilateral relationship is unique, and the resulting power-sharing arrangements vary greatly depending on the field involved.

These differences are heightened by genuine disparateness, since the entities of the federation are unequal in area, economic importance, population and political strength. An entity's status in fact depends on its capacity to negotiate with the central authorities. In addition, the republics have taken on considerable importance and are the very root of the asymmetry in the federation's structure. It was first and foremost their national specificity that allowed them to attain greater autonomy within the Federation, an autonomy which was subsequently heightened by the power-distribution mechanisms agreed with Moscow.

The Republic of Tatarstan was the first to sign an agreement with Moscow, on 15 February 1994. This first bilateral treaty between the federal authorities and an entity specifies the general framework of the republic's prerogatives and is supplemented by some ten earlier or later protocols (see appendix I).

Spain

The Autonomous Communities established under the quasi-federal system in force in Spain are proof that it is feasible to opt for different degrees of regional self-government.

Among the Autonomous Communities the Basque Country and Catalonia enjoy a greater degree of autonomy. Article 148 of the Spanish Constitution mentions a number of powers which are conferred on the Autonomous Communities, and Article 149 lays down a restrictive list of powers allocated to central government. All remaining powers will be the State's preserve unless conferred on the Autonomous Communities under their respective Statutes. The Statutes of the Autonomous Communities are debated and passed by the Spanish parliament, whereon they acquire the status of constitutional laws, according to a procedure which differs depending on whether or not the community represents a "historic nationality". This provides a basis for potential differences in treatment between the Autonomous Communities.

The example of the Basque Country shows how this works in detail. Apart from the spheres which generally come within the jurisdiction of the Autonomous Communities (education, health, social services, culture, housing, town planning, spatial development, communications, local electoral law, etc.), this community is self-governing in respect of virtually all forms of law enforcement and manages its own tax revenues. It regulates and collects all taxes raised in its territory together with central government, and its contribution to the State expenditure budget (defence, foreign policy, etc.) is fixed by agreement with the State authorities.

Catalonia is another example (see appendix II).

Italy

For political, cultural and economic reasons the Italian Constitution of 1948 provided for two categories of regions: those with special status and those without.

In the latter case the region's Statute is drafted and adopted by the Regional Council (which already engenders fairly significant differences between regions with the same status) and approved by an ordinary law of the republic. In the former special statutes are adopted by constitutional law, which is a second cause of disparities since the sources of the law are of different hierarchical ranks in the two cases.

However, there are even quite significant differences between the five regions with special statutes; mention need merely be made of Sicily, which has a Regional Assembly and, under Article 36 of its statute, is empowered to deliberate on all tax matters affecting the region, regardless of the national law in that sphere, setting it apart from the other regions with special status, which continue to be bound by the principles enshrined in national tax law. A further example is that of Sardinia, which is entitled to enforce law and order.

Another interesting case is that of the Autonomous Province of Bolzano (also referred to as the Southern Tyrol) which enjoys special powers, in particular in financial and budgetary matters, under a treaty between Austria and Italy.

Furthermore, the proposed constitutional reform, which is currently before the Italian parliament and was recently examined by the Congress, favours the adoption of constitutional laws granting special status to those regions which apply for it. This will lead to even greater differences between different territorial entities and will hence exacerbate the lack of uniformity in the State's internal organisation.

Finland

Finland has a unitarist system of government with nineteen "regions" (maakunta), including the Åaland Islands. This is an autonomous, Swedish-speaking region, which enjoys special status, secured by a Self-Government Act, is endowed with considerable legislative and administrative (but not judicial) powers and has an Executive Council and an Assembly that votes the region's annual budget and must approve all national legislation affecting the region.

It should be noted that this status arises from the solution adopted in 1921 by the League of Nations, which settled the dispute between Sweden and Finland over this territory but at the same time gave rise to this difference in autonomy between Finland's regions.

7.3 How the local democracy embassies could help solve the crisis between Kosovo's different communities

In 1993 the then Standing Conference of Local and Regional Authorities of Europe instigated a programme of co-operation between local and regional authorities to provide material support for municipalities ravaged by the war raging at the time which were eager to preserve their multi-cultural character. The aim of the local democracy embassies (LDEs), set up under the auspices of the Standing Conference, was to foster dialogue between the various communities. LDEs are established under an agreement between at least three cities, municipalities or regions of different Council of Europe member States and a host municipality or region. The first such local democracy embassy was inaugurated in 1993 in Subotica, Vojvodina, with the backing of the cities of Namur (Belgium), Elche (Spain) and Tilburg (Netherlands) and the association "Causes Communes Belgique". In this connection, it should be pointed out that, like Kosovo, Vojvodina enjoyed the status of an Autonomous Province under the 1974 Yugoslav Constitution.

A local democracy embassy's partners commit themselves to implement a number of activities with the aim of promoting local democracy in the broadest sense, fostering inter-community relations and encouraging all citizens to take an active role in local public life. Such a venture relies on co-operation between the local and regional authorities involved in the project and, more broadly, on concrete exchanges of information and experience between NGOs, schools, youth organisations and the economic agents parties to the LDE project, in a spirit of partnership. A delegate, who is not a national of the host country, is appointed by the partners to implement the programme of activities they have agreed upon.

The LDEs programme helps to disseminate, at local and regional level, the instruments adopted by the Council of Europe for the purpose of furthering tolerance, democratic practices, growth in local and regional democracy, minority rights and the European integration of local and regional authorities. Eight local democracy embassies are now operational in Croatia (Osijek/Vukovar, Sisak and Brtonigla-Verteneglio), Bosnia and Herzegovina (Tuzla, Sarajevo and Zavidovici), "the Former Yugoslav Republic of Macedonia" (Ohrid) and the Federal Republic of Yugoslavia (Subotica). They can also function as a network, stimulating the pooling of experience within the region. This programme, which is currently confined to the territory of the former Federation of Yugoslavia, should in future spread to other regions of Europe, which have expressed a desire or a need for such action.

The local democracy embassies are intended to build bridges between citizens and to provide a forum for debate and discussion, a place where the different components of civil society can exchange ideas and information. One of their primary aims is to promote confidence-building measures as a means of restoring and fostering dialogue. For example, the LDE in Osijek/Vukovar has organised a number of meetings between Croat and Serb elected representatives and journalists. That in Ohrid has arranged working meetings between Macedonian and Albanian elected representatives from both sides of Lake Ohrid. The Brtonigla-Verteneglio LDE, located in Istria, is investigating the scope for a bilingual, bicultural, frontier region. The LDEs' tasks have now grown in response to new needs expressed by the host country's local and regional authorities in the fields of reconstruction, economic exchanges and training of elected representatives, all areas where active commitment by the partner local and regional authorities can facilitate the LDEs' work.

However, because of the difficulties encountered in the Federal Republic of Yugoslavia it has not been possible to explore all the possibilities offered by the programme. The establishment of new partnerships has met with a number of obstacles, despite the fact that municipalities in Serbia and Montenegro have requested the creation of an LDE. Visas remain difficult to obtain, a situation which does not facilitate contacts with representatives of local and regional authorities or the international organisations acting on their behalf. This may have an adverse effect on the interest and willingness of potential partner local or regional authorities elsewhere in Europe and, above all, prevents the delegates appointed by the partners from permanently working and living in the regions concerned. Moreover, as things stand at present, the local democracy embassies, or "agencies", are not granted an appropriate legal status, in keeping with their purpose, and this can make it more difficult for international organisations to provide financial support. Over the past five years the Subotica LDE has done some remarkable work under difficult, precarious circumstances. However, this situation cannot be allowed to continue. An effort must be made to give the LDEs an appropriate legal status, which fully acknowledges their existence and allows them to work in complete independence in former Yugoslavia.

Establishment of LDEs would afford Kosovo a real opportunity to develop relations between the different communities. Moreover, in Recommendation 1288 (1996) the Parliamentary Assembly invited the CLRAE to "study the feasibility of establishing a local democracy embassy in Kosovo". It should be pointed out that political and financial support from the Council of Europe would be absolutely essential if the programme were to be extended to the region. In its reply to Parliamentary Assembly Recommendation 1360 (1988) on the crisis in Kosovo, the Committee of Ministers indicated that the question of establishing an LDE in Kosovo would be considered in connection with the present examination of CLRAE Recommendation 33 (1997). The creation of a foundation or adoption of an appropriate legal instrument might be a step in the right direction.

Organising seminars and workshops to encourage dialogue, arranging school exchanges, fostering knowledge of other people's languages and culture, opening up to Europe, encouraging young people to participate in local politics – all of these measures might help to bridge the gap between the communities, with due regard for local legislation and State sovereignty. This type of approach is very useful, since it first and foremost involves elected representatives at local and regional levels, and can be pursued in co-operation with the CLRAE and the Council of Europe, which have amassed know-how that might be turned to account by local and regional authorities in Kosovo to establish inter-community co-operation mechanisms. However, the opening of an LDE in Kosovo would entail finding a solution to the visa problem and the question of the LDEs' status within the FRY and necessitate significant financial support from the Council of Europe and the European Union.

8. CONCLUSIONS

The Kosovo problem is an extremely difficult one and is, moreover, exacerbated by the region's location in the heart of the Balkans. A solution cannot be found by waving a magic wand; it can only be negotiated. At best, we can merely sketch out a possible solution, proceeding by elimination.

Two extremist proposals must be ruled out from the start. Preserving the status quo, as some Serbs still recommend, is no longer feasible as it would run counter to the principles of human rights and democracy and could but lead certain groups within the Kosovo Albanian community to radicalise their position. Furthermore, it would engender a conflict and a horde of refugees, a situation which the international community now wishes to avoid.

Similarly, it would seem impossible to grant the independence demanded by the leaders of the Albanian community. This solution is not only rejected by the Serbs and other parties in the FRY, but also does not have the backing of any international organisation within the international community. What is more, the countries bordering on the FRY are against it because of the danger that it might kindle a revolt throughout the Balkans, causing the region to break up, and might even jeopardise the Dayton peace process. The positions described in section 3 of this report are ample proof thereof.

Other similar options have been envisaged, in particular the creation of an international protectorate in Kosovo, as suggested by the Democratic League of Kosovo. This solution is opposed by the Serbs and has also been turned down by the international community, which, firstly, has not shown any readiness to take such action in Kosovo and, secondly, apparently fears that this could only be a step towards independence.

The proposals to initiate a decentralisation process in Serbia and divide Kosovo into two regions, made by Serb intellectuals, do not seem to have any greater prospect of success. The idea was to split Serbia into ten regions, including Kosovo and Mitohija, and to establish a Chamber of the Regions of Serbia, but without allowing the regions any legislative power for all that (reported in Demokratija on 10 December 1997).

Mr D. Cosic, author and former President of Yugoslavia, suggested following the Bosnian example and forming two entities in Kosovo, both of which could establish a special relationship with their "States of birth" (source: ICG). This solution has not aroused much interest on account of the difficulties of defining the border between the two entities and the risks of ethnic cleansing inherent in such action.

Mere strengthening of minority rights within Serbia would likewise not satisfy the legitimate expectations of the Kosovo Albanians, who can refer to the autonomous status they enjoyed under the 1974 Constitution of the Socialist Federal Republic of Yugoslavia, which was taken from them by an unconstitutional measure in 1990.

That leaves the solution of special autonomous status for Kosovo, without jeopardising the existing frontiers and in keeping with respect for minority rights in both Serbia and Kosovo. In view of recent events, the Kosovo Albanians rightly demand that this status should be the subject of an international guarantee.

It is therefore necessary to expand upon this idea of special autonomous status, with an international guarantee. The problems posed by such status have frequently been discussed within the Congress and in particular by the Chamber of Regions, many of whose members originate, like the co-rapporteurs, from federal entities or entities enjoying special status. This is therefore familiar ground for the Congress, and it should be able to make a useful contribution to the debate on a negotiated solution, acceptable to both parties concerned.

As can be seen from the brief analysis in section 7.1 of this report, a good starting point would be to refer to the autonomous status enjoyed by Kosovo from 1974 to 1989, disregarding the lack of a democratic system in the Socialist Federal Republic of Yugoslavia. We believe that by referring to that status it would firstly be possible to highlight the need for a large-scale transfer of powers – including legislative ones – from the present Serb government to Kosovo in spheres such as education, health, the judicial system, the economy, agriculture, the use of languages, mineral resources, spatial planning, cultural institutions and place names. Secondly, this would be a means of ranging beyond the discussions on autonomy within Serbia (the Serb theory) or within the FRY (the argument defended by the international community and, in particular, by the Parliamentary Assembly in its recent Recommendation 1368). As explained in section 6, from 1974 to 1989 Kosovo was constitutionally an entity which, although part of Serbia, ranked on an equal footing with the seven other entities of the Federation. The 1974 Constitution clearly provided for this equality, particularly with regard to Kosovo's participation, alongside the other entities, in the federal organs, ie the presidency, the government, the two chambers of parliament, the Constitutional Court, etc. Kosovo's representatives were even empowered to veto decisions on essential issues, in particular those affecting the region's own autonomous status.

This unequivocally shows that the issue of Kosovo cannot be reduced to a mere question of human rights or protection of minorities.

It would seem feasible to adapt this status to the new reality embodied by the Federal Republic of Yugoslavia, all the more so in that there are now numerous examples of regions endowed with special statutes of self-government (in Russia, Spain, Italy, Finland, etc.) which could serve as a reference for the talks concerning Kosovo. Furthermore, the draft European Charter of Regional Self-Government, drawn up by the Congress, offers other useful sources of inspiration.

It would be possible to devise cultural and economic co-operation agreements with the Albanian-inhabited regions bordering on Kosovo, relying on the legal basis provided by the Outline Convention on Transfrontier Co-operation and the first protocol thereto and following the examples set by regions such as the Southern Tyrol, the Åaland Islands or, more recently, Northern Ireland.

The Congress, with its wealth of experience and the body of conventions or draft conventions referred to in section 7.1 of this report, is ready to assist this process. The European Commission for Democracy through Law ("Venice Commission"), made up of eminent legal specialists particularly well versed in constitutional matters, should also be able to make a worthwhile contribution to the search for a solution. The Congress is already accustomed to working with the Venice Commission, recent examples being the projects on the Gagauz code of law and on redefinition of municipal boundaries in the Federation of Bosnia and Herzegovina. The Congress and the Venice Commission could make their own specific contributions alongside the Parliamentary Assembly, which has announced its readiness to play a political role.

It is not a matter of devising a new statute for Kosovo in the parties' stead but of giving them pointers and examples that might help the negotiations to progress.

Such negotiations can only succeed if the Serb authorities agree to international mediation through the mission entrusted to Mr Felipe Gonzalez on behalf of the OSCE and the European Union. The Parliamentary Assembly moreover made this clear in its Recommendation 1368. The Congress is ready to provide Mr Gonzalez with any assistance he may require as regards special statutes of self-government.

It should moreover be understood that acceptance by the representatives of the Kosovo Albanian community could also hinge on their desire to see the region's special status guaranteed by the international community. In this connection, it is for the international organisations to propose an appropriate solution when the time comes. As to the Council of Europe, the idea, already proposed by the Parliamentary Assembly and the Committee of Ministers, of linking the examination of the membership application lodged by the Federal Republic of Yugoslavia with a negotiated solution to the Kosovo issue might be of relevance here.

It would then be necessary to assist the Serb and Kosovo authorities to implement any special status agreement. This is an area where the Council of Europe, with the European Union's financial support, could make a contribution through its specific technical assistance programmes.

The Congress might also contribute its experience in monitoring the progress of local and regional democracy, which would encompass other issues such as decentralisation in Vojvodina and the specific case of Sandjak. It might also establish a field presence by setting up a Local Democracy Agency (LDA) in Kosovo, responsible for both fostering co-operation between the different communities and providing the local and regional authorities with ongoing assistance in establishing genuine democracy and efficient governance. Here too, apart from the contributions made by the partner regions and municipalities, it would be necessary to be able to rely on sufficient funding from the Council of Europe and the European Union.

There would also be a need for other members of the international community, in particular the OSCE, to establish a presence, as called for by the leaders of the Kosovo Albanian community. An LDA would be a useful complement to such an international presence.

APPENDIX I

THE POLITICAL AND LEGAL EXPERIENCE OF TATARSTAN IN ITS RELATIONS WITH THE FEDERAL STATE BODY

The breaking up of the Soviet Union was the starting point for the move towards self-determination of the autonomous republics belonging to the Russian Federation. On 30 August 1990, the Autonomous Republic of Tatarstan adopted a Declaration on the State Sovereignty of the Republic of Tatarstan. This document was adopted by the Supreme Soviet (Parliament) of Tatarstan and confirmed that all the peoples living on the republic’s territory were united and that all its citizens were equal, whatever ethnic, religious or social group they belonged to. The declaration proclaimed the basic principles of the state sovereignty of the republic. Henceforward, the land, its natural resources and other resources on the territory of Tatarstan were the exclusive property of its people. Thus, one year later, the lawful right to ownership of all the republic’s material resources became the basis for the Constitution of Tatarstan.

On 16 March 1992, the Parliament of Tatarstan adopted a resolution on a referendum which was held in order for the people to confirm the principles of the Declaration on the State Sovereignty of the Republic of Tatarstan. This referendum was also designed to build up a new form of federal relations based on the principle of sharing authority with the federal state, in pursuance of a specific treaty.

On 6 November 1992, the Supreme Soviet adopted the Constitution (basic law) of the Republic of Tatarstan. In accordance with Article 61 of this text, the Republic put an end to its autonomous status and became a “Sovereign State, a subject of international law, associated to the Russian Federation – Russia on the basis of the Treaty on Mutual Delegation of Authority and Jurisdictional Subjects”.

It should be noted that Tatarstan’s position did not set a precedent in the process of democratic reform and state organisation in the Russian Federation. The Declaration on the State Sovereignty of the Republic of Tatarstan, along with similar acts in other autonomous republics in Russia, not to mention the former Soviet republics – subjects of the USSR – practically followed the Declaration on the State Sovereignty of the RSFSR (the former name of the Russian Federation), which had been adopted at the first Congress of the People's Deputies of the RSFSR on 12 June 1990 and which had proclaimed the right of all the peoples of Russia to self-determination under the national and cultural state forms they themselves had chosen. Tatarstan’s declaration of sovereignty had, in fact, been determined beforehand by the Declaration of State Sovereignty of the RSFSR.

The results of the referendum confirmed the appropriateness and democratic nature of the principles of self-determination that had been chosen by the people. 50.3% of the electorate, in a 61.4% turnout, approved the position taken by the parliament and the leaders of the Republic.

A reform of the administrative organisation of the state was begun. As far as the form of the state was concerned, Tatarstan became a unitary republic with a presidential style of government within the framework of the Russian Federation. Later on, a number of constitutional contradictions between the Republic of Tatarstan and the Russian Federation were resolved when, on 15 February 1994, the Presidents of Russia and Tatarstan signed the Treaty “On Delimitation of Jurisdictional Subjects and Mutual Delegation of Authority between the State Bodies of the Russian Federation and the State Bodies of the Republic of Tatarstan” (hereafter referred to as the Treaty).

In this text, both parties confirmed that the Republic of Tatarstan was united with the Russian Federation according to the Constitutions of the Russian Federation and the Republic of Tatarstan and the text of the Treaty. So Tatarstan did not call into question its situation as a subject of law in the Russian Federation. A number of basic provisions drawn up by political, legal and economic experts were laid at the foundations of the Russo-Tatar Treaty. The main objective of this text is to preserve the historic, cultural and other ties between the two peoples and protect a common economic area. It must be said that the Constitutions of the two states do not contradict each other as regards the recognition of the peoples’ right to self-determination. At the same time, the Treaty clarifies inter-state relations in a range of areas delegated to Tatarstan by the Russian Federation. The Treaty thus reflects the balance between regional and federal interests concerning the right of ownership by delimiting the constitutional powers of the Republic and the Federation regarding the possession, exploitation and management of the land and underground resources, including the Tatarstan oil fields.

According to the Treaty, the sovereignty of the Republic of Tatarstan, as well as that of the other constituent entities of the Russian Federation, plays a role as one of the components of federal sovereignty and determines its identity in constitutional, legal, geopolitical, national, ethnic and socio-economic areas.

Tatarstan is a republic with a presidential style of government. In building the state according to democratic principles, the Republic set up its own legislative and executive bodies. The State Council (the Republic’s single-chamber parliament) is a higher legislative and representative body which carries out its legislative work in accordance with the Constitution of Tatarstan. Tatarstan’s Head of State, the President of the Republic, and the Cabinet of Ministers which he appoints head the Republic’s executive and administrative bodies, which also encourage community initiative through local authorities.

The Treaty gives the Republic very wide powers in the field of inter-state relations both within the Federation and outside it. Article II, paragraph 11 defines the authority of the Republic of Tatarstan as regards its participation in the sphere of international relations. The Republic has the power to reach agreements with foreign states, in so far as these do not go against the Constitution or the international commitments of the Russian Federation. Tatarstan has the right to join international organisations. Article III, paragraphs 5 and 22 of the Treaty thus provide for the co-ordination of international and foreign economic relations as well as of the joint use of the land, its natural resources, water and other resources by the Federation and the Republic.

The principles of the Treaty engendered a process transforming Russia into a federation based on its constitution and various treaties. Thus Tatarstan has the right to sign independently, at regional level, intergovernmental agreements with regions of Russia, Europe and, in a number of cases, with Asian and African states, as long as they do not impinge upon the prerogatives of the federal state bodies in matters of foreign policy. These agreements mainly concern economic and cultural exchanges.

Thus, Tatarstan has signed more than forty intergovernmental agreements for mutual co-operation with regions of Russia and other countries throughout the world. It has established close economic relations with Hungary and Turkey and opened an economic and commercial mission in Budapest. Turkey has opened a Consulate General in Kazan. The development of Tatarstan’s foreign economic relations has enabled it to accede to the Assembly of European Regions. In the framework of European inter-regional co-operation, the Republic has established relations with Bavaria and Lower Saxony in the Federal Republic of Germany and is developing its relationships with France, Poland, Slovakia, Finland, Denmark and other countries.

At the same time, the Republic of Tatarstan is expanding its network of permanent missions to various countries. Today, it has missions in Ukraine, Kazakhstan, Uzbekistan, the Baltic States, Turkey, France and the United States. All this enables it to develop its foreign trading and direct relations with private economic partners. The Republic has already signed, or is planning to sign, a number of agreements with private companies across the world. These partners include American, German, Turkish and French companies. This type of operation is especially important in the fields of oil drilling and refining and in the vehicle industry. However, foreign commercial operations bearing on strategic resources or industrial production of federal importance (in the defence sector, for example) are regulated by special agreements between the Government of Tatarstan and the Russian Federation.

In conclusion, it should be emphasised that the Treaty between the Russian Federation and the Republic of Tatarstan on delimitation of jurisdictional subjects and mutual delegation of authority has created a lawful basis for democratic reform in the political and economic life of the Republic.

APPENDIX II

CATALONIA:A DYNAMIC FRAMEWORK FOR POLITICAL AUTONOMY

The basis for Catalonian self-government derives from the Spanish Constitution of 1978 and the 1979 Statute of Autonomy. In line with constitutional principles, the latter provides for the key Catalonian institutions: the Parliament, the President of the Generalitat de Catalunya15 and the Government, and the High Court of Justice. It also defines the Parliament’s exclusive legislative competence, its scope for developing the framework legislation drawn up by the Spanish Parliament, and the Catalan Government’s regulatory and executive powers, which allow it to introduce legislation passed either by its own Parliament or by that of the State.

Since 1979, the Catalonian institutions’ exercise of the powers reserved to them – whether exclusive or derived from national legislation – has naturally given rise to clashes of interpretation over jurisdiction. These have been settled by the Spanish Constitutional Court, which is the only body with the authority to rule on the constitutional conformity of laws adopted by the State or by Catalonia. Neither the Spanish Parliament nor the courts (not even the High Court) are competent to do this.

This exclusive role of the Constitutional Court has allowed the interpretation given to the provisions of the Constitution and the Statute of Autonomy to evolve, thereby gradually putting in place a so-called “constitutional bloc” allowing constitutional and statutory principles to develop freely while protecting them, as far as possible, from political influence.

Identities within the organisation of the Spanish State. During the course of roughly 300 years of Spanish history, these identities had only ever been acknowledged per se for very short periods of time.

The Preamble to the Constitution at once affirms as a principle its will to “protect all Spaniards and peoples of Spain in the exercise of human rights, their cultures and traditions, languages and institutions”. In Article 2, the Constitution “recognises and guarantees the right to autonomy of the nationalities and regions which make it [the Spanish nation] up and the solidarity among all of them”.

In accordance with these principles, Article 1 of the Catalonian Statute of Autonomy affirms Catalonia as a nationality which constitutes itself as a Self-Governing Community in order to accede to self-government.

In the first instance, this concept of nationality is a territorial consideration. It thus embraces all citizens of Catalonia: indeed, Article 6 of the Statute makes it clear that the political status of Catalans is accorded to Spanish citizens registered in one of the Catalonian municipalities in accordance with Spanish legislation on the period of time required to acquire such status.

In addition, Article 3 of the Statute provides that the language proper to Catalonia is Catalan, which is considered the official language in the territory of the Self-Governing Community of Catalonia on the same basis as Castilian (or Spanish), which is the official language in all of Spain.

The practical scope of Catalonian self-government is determined in the first instance by the exclusive powers of the Catalonian Parliament to legislate in a variety of areas (including Catalan civil law, regional planning, culture, internal infrastructures and social security) or to develop the framework laws of the Spanish State in others (such as health, education, agriculture, industry, internal trade, local government, and corporate, public and territorial credit institutions).

The laws of the Catalan Parliament are promulgated on behalf of the King by the President of the Generalitat de Catalunya. Constitutionally, the President is the highest authority in Catalonia and simultaneously embodies the highest ordinary representation of the Spanish State on Catalan territory.

Given that the executive powers of self-government involve providing the corresponding services, the level of funding required in order to realise fully the aims of the Statute of Autonomy has naturally been increasing.

The funding system followed to date has consisted of transferring the revenue levied on Catalan territory through a certain number of State taxes. The core of such funding has been composed of revenue on the patrimony of the Generalitat, legacies and donations, and various other taxes. These have been supplemented by State budget allocations towards the actual cost of services transferred to the Self-Governing Community. The shortcomings of this model have made it necessary to add part (30%) of all personal income tax collected on Catalan territory.

In this respect, the Statute of Autonomy establishes the provisional nature of the system of participation in State taxation revenue by stipulating a review every five years to take account of the Catalan population and tax revenue, while also reckoning its proportional contribution due for the general financial burden of the State and inter-territorial solidarity among the seventeen self-governing Spanish communities.

In this brief overview of the characteristics of Catalan political autonomy, it is appropriate to draw attention to the statutory provision already mentioned which grounds the Catalan identity primarily in the concept of citizenship.

Because there are two official languages in Catalonia, the Catalan Parliament and Government are pursuing the fundamental aim of strengthening the cohesion of Catalan society by promoting bilingualism for all its citizens.

Because this aim is of particular importance in the education system, it is forbidden by law to segregate students according to their mother tongue in different institutions or class groups.
Given that Catalan is the native tongue of Catalonia, its use is compulsory in all educational institutions and at all levels as the normal means of expression for classroom and administrative activities, whether internal or external.

Children have the right from the day they start school to be taught in their usual mother tongue, whether Catalan or Spanish. Administrations must guarantee this personal right, which parents can exercise on behalf of their children by means of a request that it be applied to an individual case.

At the end of compulsory education, all students must have a fluent and accurate command of both the official languages of Catalonia.

This summary shows that the constitutional distinction in Spain between nationalities and regions, and the different levels of competence provided for in the statute of each self-governing community, make for an asymmetric constitutional model which it is worth developing further. If nothing else, since its introduction the Spanish system has brought about inter-institutional dialogue which forms the basis of the country’s overall economic and cultural development.

APPENDIX III

A - COMMUNIQUÉ FROM THE OFFICIAL STATE DELEGATION

In Pristina today the official State delegation headed by Prof. Dr Ratko Markovic and the delegation of representatives of the political parties of Kosovo and Metohija Albanians, chaired by Dr Fehmi Agani, initiated dialogue on the political settlement of the problems of Kosovo/Metahija.

This first meeting unfolded in a climate of tolerance and was an opportunity for a frank presentation of the different approaches to the situation and ways of normalising the situation and the relations prevailing in Kosovo/Metohija.

Special attention was paid to organisational matters and methods to ensure positive development of the dialogue.

Furthermore, stress was laid on the importance of the hearing and talks granted to Dr Ibrahim Rugova’s delegation by the President of the Federal Republic of Yugoslavia, Slobodan Milosevic.

There was a consensus that the problems of Kosovo/Metohija had to be settled by peaceful means. The aim was to identify fair, humane and lasting solutions based on equality between all citizens and national communities in Kosovo/Metohija, mutual respect, tolerance and security. Violence, particularly terrorism, had accordingly to be prohibited, as did all other phenomena giving rise to fear and insecurity among the citizens.

Moreover, it was agreed that both sides would adopt trust-building measures, as confidence was a precondition for implementing the said solutions.

With a view to normalising the situation and relations as quickly as possible, each side voiced a determination to make its own political effort to consolidate the dialogue and ensure that practical results were attained as soon as possible.

It was agreed to hold meetings between the delegations, once a week in principle. The next meeting will therefore be taking place next week.

The parties to the dialogue agreed that meetings and consultations could be organised with a larger or smaller number of persons. The outcome of these meetings will be made public in order to enhance the atmosphere of dialogue. The delegations agree to adopt a more flexible attitude to any changes in their respective memberships, depending on the outcome of future meetings.

The parties to the dialogue undertook to comply in good faith with the agreements and not to challenge or infringe them.

B - COMMUNIQUE BY THE ALBANIAN PARTY, READ OUT BY B. SALIJA

The Kosovo Albanian team appointed by Dr Ibrahim Rugova today met the delegation appointed by President Slobodan Milosevic under the process launched by Ambassadors Holbrooke and Gelbard on the basis of last week’s talk between Dr Rugova and President Milosevic in Belgrade. The discussions at this meeting concerned the framework and procedure for the talks, security measures and the mutual trust-building which are needed to maintain the talks process, as well as the political status of Kosovo. In contrast to the obvious differences of appraisal of the current situation in Kosovo and the ways of resolving the problem there, both sides in this meeting expressed a determination to create the preconditions for a satisfactory talks process.

Pristina, 22 May 1998

 

1 Articles 1 and 2 of the Constitution of the Federal Socialist Republic of Yugoslavia, Belgrade, 1974.

2 See Document 8058 Addendum 1, of 2 April 1998. 3 Mr Chénard, Vice-President of the Congress, attended this meeting of the Standing Committee and was able to state the Congress’s opinion.

4 Constitution of the Socialist Federal Republic of Yugoslavia, Belgrade 1974, Article 298

5 Article 402 of the 1974 Constitution

6 Article 239 of the 1974 Constitution stated "the municipalities, Autonomous Provinces, Republics and other socio-political communities shall have the right and duty, under the system of national defence, to regulate and organise national defence within their territories and to take charge of territorial defence ¼". It was for the armed forces of the SFRY to defend the independence and territorial integrity of the SFRY (Article 240).

7 Preamble to the 1974 Constitution, Basic Principles, I

8 It is interesting to note that the Preamble to the 1974 Constitution also mentioned a right to secession of members of the Federation. However, at the time this provision was generally construed as meaning that this right had already lapsed when the Federation came into being and the Republics had renounced it on becoming members thereof.

9 Article 4 of the 1974 Constitution provided "An autonomous socialist province is an autonomous socialist socio-political community which is democratic and self-governing and has its basis in the power and self-determination of the working class and all working people, whereby workers and citizens, peoples and nationalities exercise sovereign rights, subject, at the level of the Republic, to the provisions of the Constitution of the Socialist Republic of Serbia requiring that this be done in the common interest of the workers and citizens, peoples and nationalities of the Republic as a whole."

10 Articles 284 and 286 of the 1974 Constitution

11 Articles 370, 381 and 448 of the 1974 Constitution

12 Article 321 of the 1974 Constitution

13 Article 214 of the 1974 Constitution

14 In 1980/81 demonstrators in Kosovo demanded improved living conditions, financial assistance, greater freedom of expression, the release of political prisoners and the status of a Republic.

15 An historical name given to denote the Catalan government, it dates from the time, prior to the 18th century, when Catalonia enjoyed the position of a State within the Spanish Confederation.