REPUBLIC OF SLOVENIA
MINISTRY OF FOREIGN AFFAIRS
INTERNATIONAL COURT OF JUSTICE
ACCORDANCE WITH INTERNATIONAL LAW OF
THE UNILATERAL DECLARATION OF INDEPENDENCE BY THE
PROVISIONAL INSTITUTIONS OF SELF-GOVERNMENT OF
KOSOVO
(REQUEST FOR AN ADVISORY OPINION)
WRITTEN COMMENTS
OF THE REPUBLIC OF SLOVENIA
ON OTHER WRITTEN STATEMENTS
17 JULY 2009TABLE OF CONTENTS
INTRODUCTION ..........................................................................................................3
I. DISSOLUTION OF THE FORMER SFRY AND THE CREATION OF NEW
STATES ON ITS TERRITORY.....................................................................................3
1. Dissolution of the former SFRY.........................................................................3
2. General principles of international law on the creation of new states................5
II. LEGAL REGULATION OF THE STATUS OF AUTONOMOUS PROVINCES
IN THE FORMER SFRY...............................................................................................7
1. Constitutional status of autonomous provinces under the 1974 SFRY
Constitution.................................................................................................................7
2. Amendments to the Constitution of the SR Serbia of March 1989 ..................12
3. Adoption of the 1990 Constitution of the Republic of Serbia ..........................14
4. Law on the Actions of Republic Authorities under a State of Emergency of 26
June 1990 - Proclamation of the State of Emergency in Kosovo .............................19
4.1. Violation of the principles of the rule of law .................................................22
5. Law on Labour Relations under State of Emergency of 26 July 1990.............27
6. Law on the Termination of Work of the Assembly of the SAP Kosovo and the
Executive Council of the Assembly of the SAP Kosovo - Abolition of the supreme
bodies of the SAP Kosovo........................................................................................28
6.1. Decisions adopted on the basis of the new laws - dismissal of a member of
the Presidency of the SFRY and abolition of the Presidency of the SAP Kosovo.31
7. Constitutional changes after 1991.....................................................................33
CONCLUSION.............................................................................................................36
2INTRODUCTION
1. Pursuant to the Court’s order of 17 October 2008, the Republic of Slovenia
respectfully offers its written comments on the written statements submitted to the
Court concerning the request for an advisory opinion on the question of “Accordance
with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo”. After examining the written
contributions submitted to the Court, the Republic of Slovenia noticed that some of
the written contributions elaborated on the issue of the dissolution of the former
Socialist Federal Republic of Yugoslavia (hereinafter: the SFRY) and the creation of
new states on its territory as well as on different interpretations of the constitutional
system of the former SFRY and Socialist Republic of Serbia (hereinafter: SR Serbia),
in particular on the 1974 Constitutions, as well as the 1989 amendments to federal and
republic Constitutions. The Republic of Slovenia, as one of the five successor states to
the former SFRY, wishes to offer some clarifications regarding the mentioned aspects,
which might contribute to a better understanding of the latter.
2. The first part of the written comments of the Republic of Slovenia thus focuses on
special features of the dissolution of the former SFRY, and the creation of new states
on its territory. The second part examines in greater depth the constitutional status of
autonomous provinces under the 1974 SFRY Constitution, constitutional amendments
of 1989 and the adoption of the relevant laws on these legal bases.
I. DISSOLUTION OF THE FORMER SFRY AND THE CREATION OF
NEW STATES ON ITS TERRITORY
1. Dissolution of the former SFRY
3. The dissolution of the former SFRY is a unique example of the creation of new
states, of which the examination of new claims to statehood was entrusted by the
European Community to an Arbitration Commission of the Peace Conference on the
3former Yugoslavia headed by Robert Badinter. Alongside the Badinter opinions,
there were several UN Security Council resolutions adopted with regard to this issue.
In Badinter Opinion No. 8 of 4 July 1992, the Arbitration Commission concluded that
the process of dissolution of the SFRY was complete and that the SFRY no longer
existed. The same conclusion was reached by the UN General Assembly resolution
47/1 of 22 September 1992, as well as by the UN Security Council resolution 777
(1992).
4. Despite the fact that some written statements refer to the Badinter Arbitration
Opinion No. 2 regarding the right to self-determination and changes to existing
2
frontiers, it is important to explicitly emphasise that the Badinter Opinion No. 3
refers also to Paragraphs 2 and 4 of Article 5 of the SFRY Constitution (1974).
Paragraph 2 of Article 5 stated: “A republic’s territory cannot be altered without the
consent of that republic, and the territory of an autonomous province without the
consent of that autonomous province”; while Paragraph 4 provided that “A border
between republics can only be altered on the basis of their agreement, and in the case
of a border of an autonomous province on the basis of its concurrence.” Therefore
Badinter Opinion No. 3 of 20 November 1991 is of utmost importance regarding
territorial integrity and border issues. The Arbitration Commission stated that the
3
former internal boundaries had become frontiers protected by international law. The
Badinter Commission based its opinion upon the uti possidetis principle (i.e. Third
Principle). It concluded that the uti possidetis principle, although initially applied in
settling decolonisation issues in America and Africa, is today recognised as a general
principle, as stated by the International Court of Justice in the Frontier Dispute. It is4
necessary to explain, however, that internal borders, i.e. administrative borders in the
SFRY were defined by municipalities rather than by republic borders or by the
borders between republics and provinces, while at sea no formal border existed.
1
On the dissolution of the former SFRY see, inter alia, Türk, D.: Recognition of States: A Comment,
in: 4 EJIL (1993), pp. 66-71 and Pellet, A.: The Opinions of the Badinter Arbitration Committee – A
Second Breath for the Self-determination of Peoples, in: 3 EJIL (1992), pp. 178-185.
2 See e.g.: Written statement of Serbia, p. 205, para. 564; Written statement of the Netherlands, p. 8,
para. 3.8; Written statement of Finland, p. 3, para. 5; Written statement of Spain, p. 18, para. 24;
3ritten Statement of Iran, p. 6, para. 3.6.
Conference on Yugoslavia Arbitration Commission, Opinion No. 2 (11 January 1992).
4Frontier Dispute, ICJ 1986 Reports 554 at p. 565, Opinion 3 Third Principle.
5E.g.: Written statement by Cyprus, pp. 30-31, para. 119; Written statement by Romania, p. 23, para.
69.
45. However, the Badinter opinions are silent on the question of state succession. As
indicated in the initial statement of the Republic of Slovenia, the succession of the
former SFRY was defined in 2001 by the Agreement on Succession Issues concluded 6
in Vienna between five successor states to the former SFRY: Bosnia and
Herzegovina, Croatia, Macedonia, Slovenia and the Federal Republic of Yugoslavia
(hereinafter: FRY). In case of Kosovo, the creation of the new state is related to the
right to secession from the Republic of Serbia, which is one of the forms of the
creation of states in international law. Therefore, in case of Kosovo it is not the matter
of direct exercise of the right to self-determination in the context of the dissolution of
the former SFRY. However, it could not be overlooked that prior to its independence
Kosovo formed part of the Republic of Serbia, which is as a state successor of the
state of Serbia and Montenegro and FRY one of five equal state successor of the
7
former SFRY.
6. In case of Kosovo it must be taken into account that Kosovo is a sui generis case
due to unique circumstances which led to the Declaration of Independence of
8
Kosovo. These circumstances are the status of Autonomous Province of Kosovo in
the former SFRY, the dissolution of the SFRY, the later gross and systematic human
rights violations, humanitarian catastrophe, the rejection of the Rambouillet Accord,
the UN Security Council Chapter VII resolutions, the 9 year presence of the
international administration, the lack of agreement of key actors to assure a certain
level of autonomy and of the status of the province, and the responsibility of the
international community for peace and stability in the region.
2. General principles of international law on the creation of new states
7. By examining the written statements, delivered to the Court by other states, the
Republic of Slovenia found that some states emphasised the issue of the hierarchy of
6
Agreement on Succession Issues, Ur. l. RS No. 71/2002, 8 August 2002, MP No. 20/2002, entered
into force: 2 June 2004.
7 The issue of the unilateral declaration of independence of Kosovo could therefore not be entirely
separated from the dissolution of the former SFRY, as is stated in written statements of some states.
See e.g.: Written statement of Russian federation, pp. 15-16, paras. 43-45; Written statement of Cyprus,
pp. 29-31, paras. 115-122.
8
EU Council Conclusions on Kosovo, 18 February 2008 (2851st External Relations Council meeting):
“… Kosovo constitutes a sui generis case…”.
5the relevant principles of international law. 9 The Declaration on Principles of
International Law Concerning Friendly Relations and Co-Operation among States in
10
accordance with the Charter of the United Nations (1970) provides for seven
principles among which there are also “the principle that States shall refrain in their
international relations from the threat or use of force against the territorial integrity
or political independence of any State, or in any other manner inconsistent with the
purposes of the United Nations” and “the principle of equal rights and self-
determination of peoples”. Similarly, the Helsinki Final Act of the Conference on
Security and Co-operation in Europe of 1 August 1975 includes the Declaration on
Principles Guiding Relations between Participating States (so-called Helsinki
Decalogue). Among those principles, which all are of primary significance, guiding
their mutual relations, there are also “Sovereign equality, respect for the rights
inherent in sovereignty”, “Inviolability of frontiers”, “Territorial integrity of States”,
“Respect for human rights and fundamental freedoms, including the freedom of
thought, conscience, religion or belief”, as well as “Equal rights and self-
11
determination of peoples”. All these principles are of equal valid, albeit they might
in practice well be in conflict. Consequently, every concrete situation must be
comprehensively evaluated. In addition, the Declaration on the Guidelines on
Recognition of New States in Eastern Europe and the Soviet Union, adopted by the
European Community on 16 December 1991, provided that a state might be
recognised if it fulfils the criteria set down therein.2
8. It must be emphasized that the principle of territorial integrity, even if it could be
interpreted to exclude declarations of independence in principle (which is not the
case), cannot be absolute, but must be understood in balance with other relevant
13
principles, including the right to self-determination. Moreover, even a state, in
particular ethnically complex state, must “earn” the protection of its territorial
9 Written statement of Iran, p. 3, paras. 21-22. See also written statements of Egypt, Libya, Brazil,
Azerbaijan, China, Slovakia, Romania, Spain and Russian Federation.
10General Assembly Resolution 2625 (XXV) of 24 October 1970.
11While it was clearly recognised that the 1970 Declaration on Principles forms part of customary
international law (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392.), Slovenia
maintains that also the Helsinki Final Act presents part of regional customary international law.
12See: Written statement by the Republic of Slovenia on Accordance with International Law of the
Universal Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo
(Request for advisory opinion) of 17 April 2009.
6integrity. If a state does not respect the right to self-determination and its government
does not enjoy representativity or if the later is lost, it cannot count on having its
14
territorial integrity assured. In such circumstances, demand for independent
statehood to the disadvantage of territorial integrity of a common state might be the
only way to realise the right to free determination of political status of people forming
part of the population of the common state, recognised in Article 1 of the International
Covenant on Civil and Political Rights and International Covenant on Economic,
15 16
Social and Cultural Rights of 1966 . For these reasons, the particular circumstances
of each case are even more important.
II. LEGAL REGULATION OF THE STATUS OF AUTONOMOUS
PROVINCES IN THE FORMER SFRY 17
1. Constitutional status of autonomous provinces under the 1974 SFRY
Constitution
9. The principle of the autonomy of autonomous provinces was adopted at the
second conference of the Anti-Fascist Council of National Liberation of Yugoslavia
(hereinafter: AVNOJ) in November 1943, forming an integral part of the decision to
create Yugoslavia as a federal state (the former Kingdom of Yugoslavia was a unitary
state), granting complete rights to national minorities .
13
Türk, D.: Temelji mednarodnega prava, GV Založba, Ljubljana 2007, p. 157.
14Ibidem, p. 158. See also: Kirgis, F.: The Degrees of Self-Determination in the United Nations Era, 88
AJIL (1994), p. 304-311.
15UN General Assembly Resolution 2200 A (XXI), 16 December 1966.
16
17Türk, D.: Temelji mednarodnega prava, GV Založba, Ljubljana 2007, p. 158.
In addition to the Written statement of Serbia, pp. 63-81, paras. 144-200, and Written statement of
Kosovo, pp. 41-53, paras. 3.01-3.28, regarding the legal status of Kosovo in the former SFRY as well
as written statements of some other states in this regard (e.g. Albania, Cyprus, Finland, Great Britain,
USA, Norway) the Republic of Slovenia wishes to explain in greater depth the status of the
Autonomous Province of Kosovo under the 1974 SFRY Constitution, the circumstances of the adoption
of 1989 constitutional amendments and the proclamation of the state of emergency, which influenced
the content of the 1990 Republic of Serbia Constitution as well as the constitutional changes after 1991.
18Decision on creating Yugoslavia according to the federal principle, Uradni list Demokratične
federativne Jugoslavije, No. 1/1945:
Item 2: “In order to implement the principle of sovereignty of the nations of Yugoslavia, that
Yugoslavia would truly be the homeland to all its nations and that it would never again become the site
of any hegemonic clique, Yugoslavia is built and will be built according to the federal principle which
will ensure full equality of Serbs, Croats, Slovenians, Macedonians and Montenegrins, or the nations of
Serbia, Croatia, Slovenia, Macedonia, Montenegro, and Bosnia and Herzegovina.”
710. The autonomous units of Vojvodina and Kosovo-Metohija were then set up in
1945 and integrated into the Republic of Serbia (this decision was upheld by the third
AVNOJ Conference in August 1945). In September 1945, the People’s Republic of
Serbia (hereinafter: PR Serbia) adopted the Law on the Autonomous Authority of
Kosovo-Metohija and the Law on the Autonomous Province of Vojvodina. Formally,
the autonomous province enjoyed a higher status than the autonomous authority.
11. The status of Vojvodina and Kosovo-Metohija as introduced in 1945 was later
endorsed by the 1946 Constitution of the Federal People’s Republic of Yugoslavia
(hereinafter: FPRY) and the 1947 Constitution of the PR Serbia. It must be stressed
that the Republic of Serbia was the only republic of the FPRY to have autonomous
constitutive units.
12. The status of both autonomous units was made equal in 1968 (both became
autonomous provinces) through the adoption of amendments to the 1963 SFRY
Constitution; “Kosovo and Metohija” was renamed “Kosovo”.
13. The status of both provinces as constitutive elements of the Federation was finally
regulated by the 1974 SFRY Constitution. This means that the autonomous provinces
in the former SFRY were formally created by the 1974 federal constitution. The status
of the autonomous provinces was unusual in that it had a dual character. On the one
hand, the autonomous provinces were federal units within the SFRY and, on the other
hand, they were autonomous units within the Republic of Serbia.
14. The 1974 SFRY Constitution (Article 2) stipulated that the Federation was
comprised of the Republics of Bosnia and Herzegovina, Macedonia, Montenegro,
Croatia, Slovenia, and Serbia and the autonomous provinces of Kosovo and
Vojvodina.
15. The difference between a republic and an autonomous province was explained in
the Constitution. The republic was defined as “a state and a socialist self-managing
Item 4: “National minorities in Yugoslavia shall be granted all ethnic rights.”
8democratic community” , while the autonomous province was “an autonomous,
socialist, self-managing, democratic, socio-political community” . 20
16. Notwithstanding the formal difference between republics and autonomous
provinces, the autonomous provinces were de facto constitutive elements of the
Federation. Therefore, on the basis of the SFRY Constitution, the Yugoslav
Federation consisted of eight federal units: six republics and two autonomous
provinces.
17. The autonomous provinces had an organisational structure which was virtually
equivalent to that of a republic, since both possessed the same bodies. Most
importantly, both autonomous provinces and republics had a presidency acting in the
capacity of head of state. In deciding on the main issues in the Federation, the
competences of the autonomous provinces were practically equal to those of the
republics. The differences between republics and autonomous provinces were
apparent; however, in the structure of the bodies of the Federation and the forms of
decision-making by federal bodies.
18. The highest level of formal equality between an autonomous province and a
republic was apparent from the composition of the collective head of state, i.e. the
Presidency of the SFRY. The composition of the latter was based on the principle of
parity, according to which all federal units were represented by one member
respectively. Such a composition enabled equal status among members of the
Presidency of the SFRY from the autonomous provinces and those from the republics.
Based on the pre-selected order of the presidency, a representative of the autonomous
province could also become President of the Presidency (collective head) of state.
19
Article 3 of the SFRY Constitution: “The Socialist Republic is a state based on sovereignty of
nations, the authority and self-management of working people and all workers, and it is a socialist self-
managing democratic community of working people, citizens and equal nations and nationalities.”
20Article 4 of the SFRY Constitution: “The socialist autonomous province is an autonomous, socialist,
self-managing, democratic, socio-political community based on authority and self-management of the
working class and all working people, in which working people together with citizens, nations and
nationalities exercise their sovereign rights, when specifically provided for by the Constitution of the
Socialist Republic of Serbia in the interest of all working people, citizens, nations and nationalities of
the republic, this also applies to the Republic.”
919. At the federal level, autonomous provinces were equal to republics also with
regard to decision making powers on the following main issues:
- Republics and autonomous provinces took decisions on amendments to the
SFRY Constitution on an equal footing (Articles 398–402 of the SFRY
Constitution), meaning the consent of autonomous provinces was required for
the adoption of an amendment to the SFRY Constitution;
- Federal bodies decided on laws and other issues stipulated by the
Constitution (Articles 398–402 of the SFRY Constitution and amendment No.
40) on the basis of the agreement of republic and provincial assemblies;
- The Federation concluded certain treaties in agreement with the competent
republic or provincial bodies (Article 271 of the SFRY Constitution);
- Republics and autonomous provinces cooperated with foreign bodies,
organisations and international organisations (amendment No. 36 to the SFRY
Constitution);
- Republics and autonomous provinces could request a special decision-
making procedure in the Federal Chamber of the SFRY Assembly (Article 294
of the SFRY Constitution).
20. Even more, at the federal level, common interests were implemented:
a) Through federal bodies in which the equality of republics and autonomous
provinces was guaranteed, and
b) Through federal bodies on the basis of decisions or agreement by the bodies
of republics and autonomous provinces (Article 244, paragraph 2, of the SFRY
Constitution).
21. In federal bodies, autonomous provinces were represented either according to the
principle of equality with republics (principle of parity), or according to the principle
of appropriate (smaller) representation.
22. The principle of parity was implemented within the collective head of state, i.e.
the SFRY Presidency (Article 321 of the SFRY Constitution and amendments Nos. 4
and 41). Therefore, each republic and autonomous province had one member elected
by the republic or provincial assembly.
1023. The principle of appropriate (smaller) representation was implemented in other
federal bodies. In the SFRY Assembly, the Federal Chamber (lower house) had thirty
members from each republic and twenty members from each autonomous province
(Article 291 of the Constitution and amendment No. 40), while the Chamber of
Republics and Provinces (upper house) had twelve members from each republic and
eight from each autonomous province (Article 292 of the Constitution and amendment
No. 40). The Constitutional Court of Yugoslavia consisted of two members from each
republic and one from each autonomous province (Article 381 of the SFRY
Constitution). The Constitution did not stipulate the number of the Federal Executive
Council members (federal government); however, the principle of equal
representation of republics and respective representation of autonomous provinces had
to be taken into account (Article 348 of the Constitution and amendment No. 43).
24. The status of the autonomous provinces under the 1974 SFRY Constitution was in
several ways equal to the status of the republics. The autonomy possessed by the
autonomous provinces was therefore significant, and consequently the autonomous
provinces formed de facto constitutive elements of the SFRY. However, in 1989 the
process of abolishing autonomy was conducted through two parallel
procedures/levels :
- At the constitutional level by amending the Constitution in 1989, and
adopting a new constitution in 1990, which related to both provinces – Kosovo
and Vojvodina; and
- At the legislative level, where the process of the abolition of autonomy was
aimed only at Kosovo. Additionally, Kosovo’s autonomy was abolished through
the adoption of special laws and measures.
25. The process of the abolition of Kosovo autonomy began on 27 March 1989 with
the SFRY Presidency’s declaration of a state of emergency in Kosovo due to a
miners’ strike in Stari trg in Kosovo.
21For the purpose of this contribution, the abolition of Kosovo autonomy is discussed from the aspect
of the constitutional and legal status achieved under the 1974 SFRY Constitution, whereby other
dimensions such as the historical dimensions of the Kosovo issue are not dealt with.
112. Amendments to the Constitution of the SR Serbia of March 1989
26. The SR Serbia took advantage of the declaration of the state of emergency in
order to amend its 1974 Constitution, and adopted constitutional amendments the
following day after declaring the state of emergency, i.e. on 28 March 1989. These
amendments were presented to the public as having great importance for
strengthening the status of Serbia in the Federation, particularly due to amendments to
constitutional provisions relating to the autonomous provinces.
27. By way of these amendments, the status of the autonomous provinces deteriorated
considerably compared to the status enjoyed under the Constitution of the SR Serbia
and the 1974 SFRY Constitution. This particularly derived from amendments No. 29,
item 1, No. 31, No. 33, No. 44 and No. 47.
28. Amendment No. 29, item 1, stipulated that on the basis of the opinion of the
Constitutional Court of Serbia, certain provisions of the constitutions of autonomous
provinces were not applicable (meaning they ceased to apply), if the assembly of the
autonomous province did not harmonise such provisions with the aforementioned
opinion within one year.
22
29. Amendment No. 31 abolished Article 296 of the Constitution of the SR Serbia ,
according to which the republic administrative bodies of Serbia conducted business
with municipal authorities through the relevant provincial administrative bodies. By
doing so, the Republic of Serbia deprived the autonomous provinces of the status
which derived from Article 4 of the SFRY Constitution and which was essential,
taking into account Article 278 of the SFRY Constitution. The latter stipulated that
federal administrative bodies conducted business with municipal authorities through
the relevant republic and provincial administrative bodies.
30. In contrast to Article 300 of the Constitution of the SR Serbia, amendment No. 33
considerably weakened the status of the autonomous provinces in the area of
22
Article 296, paragraph 1, of the 1974 Constitution of the SR Serbia: “Republic administrative bodies
conduct business with municipal authorities in autonomous provinces through relevant provincial
administrative bodies.”
12legislation which uniformly regulated relations throughout the entire territory of the
republic. The status of autonomous provinces as derived from Article 4 of the SFRY
Constitution and Article 291 of the Constitution of the SR Serbia were not taken into
account.
31. Amendment No. 44 provided that the Constitutional Court of Serbia could
continue (i.e. “begin”) to decide on certain matters, although the constitutional court
of the autonomous province had not yet concluded the proceedings. The SFRY
Constitution did not include such a provision, since the Constitutional Court of
Yugoslavia decided on a certain matter only after the republic or provincial
constitutional court had concluded its proceedings.
32. Amendment No. 47 abolished Article 427 of the Constitution of the SR Serbia,
which stated that the Assembly of the SR Serbia decided on amendments to the
Constitution of the SR Serbia on the basis of the agreement of the assemblies of the
autonomous provinces. Amendment No. 47 stipulated that provincial assemblies gave
only opinions on amendments to the republic Constitution of Serbia, and not their
consent. It has to be taken into consideration that the autonomous provinces retained
the right to give their consent to amendments to the SFRY Constitution.
33. The Constitutional Court of Yugoslavia expressed its opinion (Decision IU No.
105/1-1-89 as of 18 January 1990) on the amendments made to the Constitution of the
SR Serbia (based on Article 378 of the SFRY Constitution). It established that the
provisions of the following three amendments were contrary to the SFRY
Constitution: amendment No. 20, item 3 (transactions in immovable property),
amendment No. 27, paragraph 3 (equality of languages and scripts), and amendment
No. 39, paragraph 2 (candidates for delegates). The Constitutional Court of
Yugoslavia did not consider any of the five above quoted amendments as
unconstitutional; however, (in the opinion of the then Slovenian Constitutional Court
Judge, Prof. Ivan Kristan) the status of the autonomous provinces was affected by the
aforementioned amendments.
34. Prof. Ivan Kristan, in his capacity as the Slovenian judge of the Constitutional
Court, gave a separate opinion on the decision by the Constitutional Court of
13Yugoslavia. In addition to the violation of constitutional status of the autonomous
provinces, he also established the violation of formal constitutionality, since the
amendments to the Constitution of the SR Serbia were made during the state of
emergency in Kosovo. The Assembly of Kosovo had to give its consent to the
amendments to the Constitution of the SR Serbia, where human rights and freedoms
were violated during the state of emergency. It is especially incomprehensible that the
Kosovo provincial assembly freely consented to deleting Article 427 of the Serbian
Constitution, whereby Kosovo lost the right to give consent to future amendments to
the Serbian Constitution. Judge Kristan assessed that the procedure was illegal.
Consequently, the Republic of Slovenia does not share the view presented in some
written submissions concluding that Kosovo freely consented to the mentioned
amendments. In addition, Judge Kristan pointed to the international aspect of the
issue, and proposed that the Constitutional Court of Yugoslavia examine the UN
23
study on respect for human rights in states of emergency . However, the
Constitutional Court of Yugoslavia did not accept the proposal to examine this study
and did not postpone the formulation of its final opinion.
3. Adoption of the 1990 Constitution of the Republic of Serbia
35. Two characteristics are evident in the 1990 Constitution of the Republic of
Serbia : the first is the abolition of the then status of the autonomous province, and
the second is a redefinition of the formal relationship between the Republic of Serbia
and the Federation (SFRY).
36. This Constitution abolished the constitutional status of both autonomous
provinces as defined in the 1974 SFRY Constitution and the 1974 Constitution of the
SR Serbia; the following major elements of the autonomy of provinces were
abolished:
- Political and territorial autonomy;
23United Nations, Economic and Social Council, Commission on Human Rights, Sub-Commission on
Prevention of Discrimination and Protection of Minorities, Thirty-Fifth Session, 23 September 1982,
Study of the Implications for Human Rights of Recent Developments Concerning Situations Known as
24ates of Siege or Emergency, Special Rapporteur Mrs Nicole Questiaux.
Constitution of the Republic of Serbia, Službeni glasnik Republike Srbije, No. 1/1990, 28 September
1990.
14 - Constitution;
- Legislative powers;
- Presidency;
- Constitutional court;
- Supreme court;
- Consent to amendments to the Constitution of the Republic of Serbia;
- Alterations to the territory of the autonomous provinces no longer required
the consent of the provincial assembly.
37. Before the 1990 Constitution of the Republic of Serbia, the autonomous provinces
had “political and territorial autonomy”, from which the structure of authorities and
their competences derived. The dimensions of the political and territorial autonomy of
autonomous provinces were envisaged in Article 4 of the SFRY Constitution (1974)
and in Article 291 of the Constitution of the SR Serbia (1974) . 25
38. Conversely, Article 6 of the 1990 Constitution of the Republic of Serbia defined
the autonomous province as “territorial autonomy”. At the same time, it renamed the
autonomous province of “Kosovo” the autonomous province of “Kosovo and
Metohija”, the name it originally had. 26 Consequently, the 1990 Constitution of the
Republic of Serbia deprived the autonomous province of the element of “political”
autonomy, reducing it to the level of “territorial” autonomy, resulting in the loss of its
previous powers and status.
39. Prior to the adoption of the new Constitution of the Republic of Serbia in 1990,
the autonomous province had its own constitution, the provisions of which, however,
should not have been contrary to the SFRY Constitution. The 1990 Constitution of the
25
Article 291 of the 1974 Constitution of the SR Serbia is identical to Article 4 of the SFRY
Constitution which reads:
“The socialist autonomous province is a socialist, autonomous, self-managing, democratic, socio-
political community based on authority and self-management of the working class and all working
people, in which working people together with citizens, nations and nationalities exercise their
sovereign rights; this also applies to the Republic when it is specifically provided for by the
Constitution of the Socialist Republic of Serbia in the interest of all working people, citizens, nations
and nationalities of the republic.”
26Article 6 of the 1990 Constitution of the Republic of Serbia: “In the Republic of Serbia, there is the
Autonomous Province of Vojvodina and the Autonomous Province of Kosovo and Metohija,
representing the forms of territorial autonomy.”
15Republic of Serbia conversely stipulated that the Statute was the supreme legal act of
the autonomous province.
40. An additional degradation of the status of the autonomous province lies in the fact
that, prior to the 1990 Constitution of the Republic of Serbia, the autonomous
province adopted its constitution independently, whereas according to the 1990
Constitution of the Republic of Serbia, the Statute was adopted on the basis of the
previous consent of the Assembly of the Republic of Serbia (Article 110 of the
Constitution of the Republic of Serbia ). 27
41. Furthermore, the Constitutional Act Implementing the Constitution of the
Republic of Serbia stated that the Assembly of the Republic of Serbia would adopt a
provisional statutory decision of the Autonomous Province of Kosovo and Metohija
and call elections for the provincial assembly, which would then pass the statute of the
province. 28 In essence, there was nothing left of the provincial self-government.
42. In addition to the abovementioned changes in the status of the autonomous
provinces, the latter also lost legislative power. Laws were no longer stated among the
acts which provincial bodies could adopt on the basis of Article 109 of the
Constitution of the Republic of Serbia. The constitution granted the autonomous
provinces only the function of implementing laws. Moreover, the autonomous
provinces had the power to implement only those laws which clearly provided for
29
such a power.
27
Article 110, paragraphs 1 and 2 of the 1990 Constitution of the Republic of Serbia:
“The Statute is the highest legal act of the autonomous province laying down, on the basis of the
Constitution, the responsibility of the autonomous province, elections, organisation and operation of its
bodies and other issues of interest to the autonomous province.
The Statute of the Autonomous Province shall be adopted by its Assembly, subject to prior approval of
the National Assembly.”
28
Constitutional Act Implementing the Constitution of the Republic of Serbia, Službeni glasnik
Republike Srbije, No. 1/1990, Article 13:
“The Assembly of the Republic of Serbia shall adopt a provisional statutory decision of the
Autonomous Province of Kosovo and Metohija and call direct and secret elections to the Assembly of
the Province according to the provisions of the Constitution and the provisional statutory decision.
The newly elected Assembly of the Autonomous Province of Kosovo and Metohija shall adopt the
29atute of the Province.”
Article 109, paragraph 1, Item 4, of the Constitution of the Republic of Serbia: “The autonomous
province, through its bodies … shall implement laws, other regulations and general acts of the
Republic of Serbia and the bodies of the autonomous province shall implement these and adopt
regulations for their implementation when this is provided for by law.”
1643. As mentioned above, the 1974 SFRY Constitution (Article 147) 30provided that
the autonomous provinces had a Presidency. Conversely, the 1990 Constitution of the
31
Republic of Serbia does not list the Presidency among the bodies of the autonomous
province (Article 111). The 1974 Constitution of the SR Serbia did not list the bodies
of the autonomous province in the chapter on the autonomous province, since this was
the subject matter of the provincial constitution. Consequently, the Republic of Serbia
de iure abolished the Presidency of the autonomous province. However, the
presidencies of both autonomous provinces continued to operate, although this was
not specifically provided for in the Constitutional Act Implementing the Constitution.
The justification of the continued work of the Presidencies of the autonomous
provinces could be indirectly inferred from Article 12, paragraphs 1 and 2 of the
Constitutional Act Implementing the Constitution, which linked the functioning of the
provincial bodies to the adoption of the statute of the autonomous province, the
formation of the National Assembly, as well as the assumption of duties of the
32
President of the Republic.
44. The above mentioned de facto continuity of the Presidency of the autonomous
province may also be inferred from the fact that the Presidency of the Autonomous
Province of Kosovo and Metohija was (again) abolished on 18 March 1991.
45. The 1990 Constitution of the Republic of Serbia further abolished the
Constitutional Court of the autonomous province which formed part of the
constitutional and judicial control exercised by the SFRY at three levels (autonomous
province, republics and the Federation). The 1990 Constitution also abolished the
Supreme Court of the autonomous province.
30Article 147 of the SFRY Constitution: “The Presidency of the Republic or the Presidency of the
Autonomous Province, which represents the Republic or the Autonomous Province, and exercises other
rights and duties determined by the Constitution, is formed in the Republics and Autonomous
Provinces.”
31 Article 111, paragraph 1 of the Constitution of the Republic of Serbia: “The bodies of the
autonomous province are the assembly, executive council and administrative bodies.”
32 Constitutional Act Implementing the Constitution of the Republic of Serbia, Službeni glasnik
Republike Srbije, No. 1/1990, Article 12, paragraphs 1 and 2:
“Provincial bodies and other authorities in the autonomous province shall continue to work in
accordance with the relevant provisions of the constitutions of the socialist autonomous provinces until
the date of entry into force of the Statute of the autonomous province.
On the date when the National Assembly is constituted and when the President of the Republic takes on
his/her duties, the bodies of the autonomous province continue to work in accordance with the
Constitution.”
1746. The previous procedure for the adoption of the republic constitution was abolished
by 1990 Constitution of the Republic of Serbia. In accordance with Article 427 of the
1974 Constitution of the SR Serbia, the approval of the Assembly of the autonomous
province was required for amendments to the Constitution of the SR Serbia if they
concerned relations in the Republic as a whole. Following the adoption of the 47 th
amendment to the Constitution of the SR Serbia in 1989, the Assembly of the
autonomous province only maintained the right to present its opinion. According to
the 1990 Constitution, the Assembly no longer had the right to an opinion on
amendments to the Constitution of the Republic.
47. The constitutional guarantee of consent to the changes to the territory of the
autonomous province was also abolished in 1990. Both the Constitution of the SFRY
33
(Article 5) and the Constitution of the SR Serbia (Article 292) stipulated that the
territory of an autonomous province could not be altered without its approval. On the
other hand, Article 108 of the 1990 Constitution of the Republic of Serbia provided
that the territory of an autonomous province was determined by law. The autonomous
provinces, however, were not involved in the adoption of such a law.
48. The 1990 Constitution of the Republic of Serbia also changed the formal
relationship between the Republic of Serbia, as well as the Federation on the one hand
and the Constitution of the SFRY on the other.
49. All previous constitutions of the Republic of Serbia, including the 1974
Constitution of the SR Serbia (Article 1) , contained the provision which defined the
Republic of Serbia as a member of the Federation (FPRY, SFRY). This provision was
not included in Article 1 of the 1990 Constitution of the Republic of Serbia. Rather,
the membership of the Republic of Serbia in the Federation was referred to in Article
135 35 of the 1990 Constitution, which was an important change from the legal and
systemic aspects.
33
See Paragraph 4 of Chapter I on the dissolution of the former SFRY.
34Article 1 of the 1974 Constitution of the SR Serbia stipulated that the Socialist Republic of Serbia
formed part of the Socialist Federal Republic of Yugoslavia.
35Article 135 of the Constitution of the Republic of Serbia:
“The rights and duties vested under the present Constitution in the Republic of Serbia, which is a
constituent part of the Socialist Federal Republic Yugoslavia, and exercised in the Federation in
accordance with the federal constitution shall be exercised in accordance with the federal constitution.
1850. Neither the Constitution nor the Constitutional Act Implementing the Constitution
of the Republic of Serbia defined the rights and duties of the Republic of Serbia under
the Constitution, which should have been exercised in accordance with the federal
constitution, as stipulated in Article 135, paragraph 1, of the 1990 Constitution of the
Republic of Serbia. Although the title of Chapter VIII concerned the relationship of
the Republic of Serbia with the SFRY, Chapter VIII did not explain on what grounds
Serbia had abolished the key features of the status of the autonomous provinces as
provided for in the Constitution of the SFRY.
4. Law on the Actions of Republic Authorities under a State of Emergency of
26 June 1990 - Proclamation of the State of Emergency in Kosovo
51. The process of abolishing the autonomy of Kosovo was facilitated by the
declaration of the state of emergency in Kosovo, which preceded the adoption of the
1990 Constitution of the Republic of Serbia. However, a state of emergency was not
declared in Vojvodina. The Assembly of the SR Serbia passed a special law followed
by the declaration of the occurrence of the state of emergency in Kosovo through a
specific decision and the introduction of coercive measures in about 250 companies
and organisations in Kosovo.
52. With the Law on the Actions of Republic Authorities under a State of Emergency
of 26 June 1990, 36the Republic of Serbia gained powers which it did not have under
the Constitution of the SFRY. The Law established “state of emergency”, defined in
Article 2 of the Law, 37 the proclamation of which granted the authorities of the
If acts of the agencies of the Federation or acts of the agencies of another republic, in contravention of
the rights and duties it has under the Constitution of the Socialist Federal Republic of Yugoslavia,
violate the equality of the Republic of Serbia or in any other way threaten its interests, without
providing for compensation, the republic agencies shall issue acts to protect the interests of the
Republic of Serbia.”
36Law on the Actions of Republic Authorities under a State of Emergency, Službeni list SR Srbije, No.
30/1990, 26 June 1990.
37
Article 2, paragraph 1, of the Law on the Actions of Republic Authorities under a State of
Emergency:
“The state of emergency under Article 1 hereof is deemed to occur in the part of the territory of the
Socialist Republic of Serbia (hereinafter referred to as: part of the republic territory) where, in an
organised manner:
(1) Activities have been undertaken, directed against the constitutional order and territorial
integrity;
(2) Laws and regulations have not been implemented;
19Republic of Serbia the power to use coercive measures in order to suspend the self-
management rights of workers in companies and institutions, the rights of socio-
political communities (their assemblies and administrative bodies) and even the
jurisdiction of courts. Although the law applied to the Republic of Serbia as a whole,
38
the Assembly of the Republic of Serbia established in a decision adopted on the
same day as the law that state of the emergency had occurred only in the Autonomous
Province of Kosovo.
53. In a public debate before the Constitutional Court of Yugoslavia , its initiators
argued that, with this law, the Republic of Serbia, contrary to the Constitution of the
SFRY and federal legislation, paved the way for the introduction of coercive measures
in about 250 companies and institutions, in which management and self-management
bodies were relieved of duty, and about 55,000-60,000 workers dismissed. These
measures were aimed mainly at the majority Kosovo Albanian population.
54. The consideration of formal and substantive aspects of the adoption of the law
leads to the conclusion that it was unconstitutional. In addition to the Constitution of
the SFRY, federal laws were also violated (e.g. Law on the Foundations of State
Administration and Federal Executive Council, Law on General Administrative
Procedure, Law on Administrative Disputes).
40
55. Under the 1974 Constitution of the SFRY (Article 203) , the freedoms and rights
it guaranteed could not have been rescinded or limited; however, instances and
conditions under which freedoms and rights exercised contrary to the Constitution
(3) Actions have been undertaken that may pose risks to the life and health of people;
(4) Constitutional and statutory rights and obligations are exercised in a way that causes
serious damage to social interests and where they are aimed at attaining objectives contrary to
the Constitution.”
38Decision of the Assembly of the Socialist Republic of Serbia establishing the occurrence of state of
39ergency in the territory of the SAP Kosovo (Službeni glasnik SR Srbije, No. 31/1990, 26 June 1990).
Public debate was held before the Constitutional Court of Yugoslavia on 30 May 1991. It was
chaired by the President of the Constitutional Court of Yugoslavia, Milovan Buzadjić, the judge
rapporteur was Pjeter Kolja. The public debate was attended by: Musa Janiku and Avni Kpuska on
behalf of the Assembly of the Djakovica Municipality which initiated the procedure; Njegovan Kljajić
and Dr Vladan Kutlešić on behalf of the Assembly of Serbia; initiators of the procedure: Sabit Hodža,
Dr Esad Stavileci, Šaban Kajtazi, Nik Ljumezi; senior research fellows: Prof. Dr Ibrahim Festić from
Sarajevo, Prof. Dr Dragan Medvedović from Zagreb, Prof. Dr Budimir Košutić from Belgrade, Prof. Dr
Boštjan Markić from Ljubljana and Prof. Bardulj Čauši from Pristina.
40 Article 203, paragraph 1, of the SFRY Constitution: “Freedoms and rights guaranteed by the
Constitution may not be rescinded or limited.”
20might be limited or rescinded were envisaged in the law. The judicial protection of
rights and freedoms was guaranteed. The right to self-management was defined in the
41
Constitution (Article 155) as an inviolable and inalienable right of working people
and citizens in companies, institutions and socio-political communities.
56. The protection of freedoms and rights applied in time of peace, state of emergency
and under the threat of imminent war. Derogations were possible only in a state of
war, when the Presidency of the SFRY could suspend, by a decree with the force of
law, individual freedoms and rights for the purposes of national defence (Article 317
and Amendment No. 41).
57. The Republic of Serbia lacked legitimate powers to introduce a state of
emergency, limit self-management rights or dismiss workers. By adopting this law,
the Republic of Serbia interfered in areas falling within the powers of the federation
(Article 281 of the SFRY Constitution ). 42
58. The Law on the Actions of Republic Authorities under a State of Emergency was
adopted contrary to the Constitution, as it withdrew powers from the bodies of other
socio-political communities (municipalities and autonomous provinces), delegated
these powers to the republic bodies of Serbia and, above all, concentrated powers in
the republic Assembly of Serbia (Articles 13-16). By subjecting municipal and
43 44
provincial bodies to republic bodies, the law directly violated Articles 132 and 149
of the Constitution of the SFRY. According to the Constitution of the SFRY,
assemblies of socio-political communities were not vertically subordinated, whereas
41Article 155 of the SFRY Constitution: “The right of working people and citizens to self-management
shall be inviolable and inalienable, by which every person is provided with a possibility to decide on
his/her personal and common interests in the organisations of associated labour, local communities,
organisation of self-managing communities, as well as in any other self-managing organisations and
communities and socio-political communities, and also in all other forms of its self-managing
association and establishment of mutual links.”
42Article 281 of the SFRY Constitution provided for 17 sets of matters that the Federation regulated
through federal bodies.
43
Article 132, paragraph 1, of the Constitution of the SFRY: “Assembly is a body of social self-
management and the highest organ of government within the rights and duties of socio-political
communities.”
44Article 149, paragraph 3, of the Constitution of the SFRY: “Administrative bodies are independent
within the framework of their authorisations, and are accountable for their work to the Assembly and
the Executive Council.”
21managing bodies were horizontally responsible to the assembly of the relevant socio-
political community.
59. Furthermore, the provision of Article 6 of the law was also contrary to the
Constitution, since it granted the Supreme Court of Serbia the power to designate
another competent court to decide administrative disputes, while under the Law on
Regular Courts of the SAP Kosovo, the Supreme Court of Kosovo had exclusive
jurisdiction in settling administrative disputes in the SAP Kosovo.
60. The unconstitutionality of the law on a state of emergency was further intensified
by two instruments adopted by the Assembly of the SR Serbia on the very same day
as the law, i.e. 26 June 1990: a decision establishing the occurrence of a state of
emergency in the territory of the SAP Kosovo 45 and a decision introducing
provisional social protection measures in the “Elektrokosovo” company . 46
4.1. Violation of the principles of the rule of law
61. The extent of violations of the principles of the rule of law, which posed a threat
to human rights and freedoms in Kosovo, becomes even more evident if all three acts
adopted by the Serbian Assembly on 26 June 1990 are considered together.
62. As mentioned above, at the session on that same day (26 June 1990), the
Assembly of the SR Serbia passed three acts of different legal rank:
(1) General legal norm: Law on the Actions of Republic Authorities under a
State of Emergency,
(2) Establishing the factual situation for the application of a law: Decision
establishing the occurrence of a state of emergency in the territory of the SAP
Kosovo,
45Decision of the Assembly of the Socialist Republic of Serbia establishing the occurrence of the state
of emergency in the territory of the SAP Kosovo (Službeni glasnik SR Srbije, No. 31/1990, 26 June
1990).
46Decision of the Assembly of the Socialist Republic of Serbia on taking interim social protection
measures in the public electricity distribution company Elektrokosovo Pristina (Službeni glasnik SR
Srbije, No. 31/1990, 26 June 1990).
22 (3) Sanctioning of a specific case: Decision of the Assembly of the SR Serbia
on the introduction of interim social protection measures of self-management
rights and socially owned property in the “Elektrokosovo” company in Pristina.
63. All three acts were adopted, published in the Official Journal, and entered into
force on 26 June 1990, thereby violating the principle of vacatio legis, which requires
that a certain time limit must elapse from the date of the promulgation of the law until
its entry into force. The time limit ensures that those concerned are acquainted with
the cogent legal norm imposing or prohibiting certain conduct in order to adapt their
future actions to these cogent norms. This was not done in this case. Those concerned
were not acquainted with the coercive norms and were not given the opportunity to
adapt their actions to these norms.
64. Contrary to the vacatio legis requirement, the law did not provide for any time
limit within which the people of Kosovo could become acquainted with the provisions
of the Law, particularly with Article 2 stipulating actions due to which the Assembly
may declare a state of emergency (undermining the constitutional order and territorial
integrity, failure to implement laws, threats to life and health of people, damaging the
public interest). Furthermore, the decision establishing the occurrence of a state of
emergency in the territory of the SAP Kosovo would have required a sufficient time
frame within which the relevant authorities of the Republic of Serbia could have
established where in Serbia such circumstances existed. The Executive Council could
then have proposed that the Assembly establishes the occurrence of a state of
emergency in a certain part of the Republic.
65. Conversely, immediately upon passing the law, the Assembly of the SR Serbia
established in a decision at the same session, with no analysis, that a state of
emergency existed in the SAP Kosovo. The taking into account of the vacatio legis
principle would have been crucial for the relevant bodies to analyse the situation on
the ground in order for the social attorney of self-management to propose to the
Assembly of the SR Serbia which companies required coercive measures.
66. Since those concerned were not acquainted with the norms defining unlawful
actions due to which the Assembly of Serbia introduced sanctions (coercive measures)
23in companies and organisations, and could therefore not adapt their actions to these
norms, the sanctions were in fact imposed retroactively. The retroactive application of
47
regulations was unconstitutional (Article 211 of the Constitution of the SFRY ).
67. Interestingly, the Law on the Actions of Republic Authorities under a State of
Emergency and the Decision of the Assembly of the SR Serbia on establishing the
occurrence of the state of emergency were adopted at the same session and were
published on the same day in special editions of the Official Journal (Službeni
glasnik), whereby both editions were issued on the same day, i.e. 26 June 1990: the
Law was published in Službeni glasnik No. 30/1990 of 26 June 1990, and the
Decision in Službeni glasnik No. 31/1990 of the same date, i.e. 26 June 1990.
68. The necessary time frame between the second level of decision-making
(establishing the occurrence of a state of emergency) and the third level (imposition of
sanctions in a concrete case), which was required to introduce actual sanctions against
certain organisations upon establishing the occurrence of a state of emergency in the
SAP Kosovo, was also lacking.
69. The republic social attorney of self-management, who was authorised, under
Article 11 of the Law on the Actions of Republic Authorities under a State of
Emergency to propose to the Assembly of the Republic of Serbia the adoption of
coercive measures, proposed to the Assembly the introduction of coercive measures
against the “Elektrokosovo” public company. The decision of the Assembly on the
introduction of such measures bears the same date (26 June 1990) and was published
in the same issue of the Official Journal (No. 31/1990).
70. Further, the republic social attorney of self-management proposed to the
Assembly of the SR Serbia the introduction of “interim measures for the protection of
self-management rights and socially owned property” against all companies or
organisations.
47
Article 211, paragraphs 1 and 2, of the Constitution of the SFRY:
“No law, other regulations or other enactments passed by bodies of socio-political communities may
be applied retroactively.
Retroactive application of particular provisions of a law may only be provided by this particular law if
general interest so requires.”
2471. In all instances, the following reasons for the introduction of interim measures
were given:
- Seriously deteriorated self-management relations,
- Serious damage to social interests, and
- Non-implementation of statutory obligations.
72. It must be stressed that no evidence was presented in support of the alleged
violations. The procedure described in the case of “Elektrokosovo” was carried out in
all companies and institutions. Upon the proposal of the social attorney of self-
management, the Assembly of the SR Serbia adopted a decision to introduce interim
measures for the social protection of self-management rights and socially-owned
property.
73. The following measures were imposed on “Elektrokosovo” by the Assembly of
the SR Serbia:
- Self-management bodies shall be dissolved: Workers’ Council; Disciplinary
Commission; Self-management Workers’ Control Committee;
- A provisional (three-member) management of the company shall be
appointed which shall take up the duties of all three self-management bodies
forthwith;
- The following self-management rights of working people shall be
provisionally suspended: the right to decide on status changes; the right to
decide on entering into employment relations and on termination of
employment; the right to decide on the distribution of personal income; the right
to decide on the distribution of apartments;
- All the aforementioned self-management rights shall be exercised by the
provisional management of the company;
- The interim measures shall be introduced for a period of 12 months;
- The costs of the implementation of the interim measures shall be borne by
the “Elektrokosovo” company.
74. The gravity of the measures is particularly evident from the measure on the costs
of unlawful abolition of the previous management and self-management status, the
costs of which had to be borne by the company or organisation itself.
2575. The Assembly imposed additional measures on 5 July 1990 on “Radio-televizija
Pristina”, on the Rilindija newspaper company, on the “Rilindija” and “Zeri e Rinis”
newspaper houses and others. Such coercive measures were introduced, with shorter
interruptions, into about 250 companies and organisations, both in economic and non-
economic sectors.
76. That there was a violation of the rule of law may also be inferred from an
examination of the General Comments adopted by the Human Rights Committee
regarding Article 4 of the International Covenant on Civil and Political Rights
concerning derogations during a state of emergency (General Comment No. 5
48 49
(1981) as well as General Comment No. 29 (2001) replacing the former ), since the
conditions stipulated therein were not met by the SR Serbia.
77. Paragraph 2 of the General Comment No. 29 stipulates that measures derogating
from the provisions of the Covenant must be of an exceptional and temporary nature.
Before a State moves to invoke Article 4, two fundamental conditions must be met:
the situation must amount to a public emergency which threatens the life of the nation,
and the State party must have officially proclaimed a state of emergency. Article 4,
paragraph 3, states that States parties, when resorting to the power of derogation under
Article 4, commit themselves to a regime of international notification. Moreover, a
fundamental requirement for any measures derogating from the Covenant, as set forth
in Article 4, paragraph 1, is that such measures are limited to the extent strictly
required by the exigencies of the situation. Paragraph 8 of the General Comment No.
29 further states that according to Article 4, paragraph 1, one of the conditions for the
justifiability of any derogation from the Covenant is that the measures taken do not
involve discrimination solely on the grounds of race, colour, sex, language, religion or
social origin.
78. It should be emphasised that General Comment No. 5 of 1981 had already
emphasised that when a public emergency which threatens the life of a nation arises
and it is officially proclaimed, a State party may derogate from a number of rights to
48
49General Comment No. 5. Thirteenth Session of the Human Rights Committee, 31 July 1981.
General Comment No. 29. Seventy-Second Session of the Human Rights Committee, 31 August
2001, CCPR/C/21/Rev.1/Add.11.
26the extent strictly required by the situation. Furthermore, the General Comment No. 5
stated that the State party, however, may not derogate from certain specific rights and
may not take discriminatory measures on a number of grounds. The obligation of the
State party to inform the other States parties immediately, through the Secretary-
General, of the derogations it has made including the reasons therefore and the date on
which the derogations are to be terminated was also mentioned, as well as an
exceptional and temporary nature of the measures introduced under Article 4.
5. Law on Labour Relations under State of Emergency of 26 July 1990
79. The Law on Labour Relations under State of Emergency of 26 July 1990 50
supplemented unconstitutional interim measures depriving employees in many
companies in the SAP Kosovo of all self-management rights.
80. The law suspended applicable labour law regulations in respect of all bodies and
organisations in the SAP Kosovo in which a state of emergency had been declared,
and it introduced interim measures for the social protection of self-management rights
and socially-owned property.
81. The adoption of the Law on Labour Relations under State of Emergency provided
SR Serbia with a formal basis for the unlawful dismissal of 55,000-60,000 workers -
mainly Kosovo Albanians (data from the public debate of 30 May 1991 before the
Constitutional Court of Yugoslavia on the Law on the Actions of Republic Authorities
under State of Emergency).
51
82. The law laid down (Article 1) that in companies and organisations on which
interim measures for social protection of self-management rights and socially-owned
50Law on Labour Relations under State of emergency (Službeni list SR Srbije, No. 40/1990, 26 July
5190).
Article 1 of the Law on Labour Relations under State of Emergency: “In part of the territory of the
SR Serbia, in which state of emergency occurred, as provided for under the law, the provisions of the
law and other regulations shall be applied regulating labour relations in work collectives of the
administration, administrative organisations, technical services and other state bodies to which
regulations on state administration apply (hereinafter: the body) as well as in companies, social
activity and other organisations and associations against which interim measures for the social
protection of self-management rights and socially-owned property have been taken (hereinafter: the
organisation), unless certain issues and relations are otherwise regulated by this law.”
27property were imposed, the provisions of laws and other regulations introducing such
circumstances were to be applied unless otherwise stipulated by law. Consequently,
Article 1 posed an unconstitutional encroachment upon the right to self-management
(Article 155 of the SFRY Constitution) and the right to work (Article 159 of the
SFRY Constitution).
83. The Law on Labour Relations in State of Emergency was also passed without
vacatio legis: it was promulgated on the date of its passage, i.e. 26 July 1990, and
entered into force on that same day.
6. Law on the Termination of Work of the Assembly of the SAP Kosovo and
the Executive Council of the Assembly of the SAP Kosovo - Abolition of the
supreme bodies of the SAP Kosovo
84. The introduction of the state of emergency in Kosovo was followed by the
encroachment on the structure of political authority in Kosovo, more explicitly, its
supreme bodies. On 5July 1990 the SAP Kosovo Assembly and its Executive Council
52
were abolished, and on 18 March 1991, the Kosovo member of the SFRY
53 54
Presidency was dismissed and the Presidency of the SAP Kosovo was abolished .
85. The Assembly of the Republic of Serbia lacked the power to pass the Law on the
Termination of Work of the Assembly of the SAP Kosovo and the Executive Council
of the Assembly of the SAP Kosovo. Under the SFRY Constitution all socio-political
communities (from the municipality to the federation) had an assembly, “a body of
social self-management and the highest authority within the scope of rights and duties
52
The Law on the Termination of Work of the Assembly of the SAP Kosovo and the Executive
Council of the Assembly of the SAP Kosovo, Službeni glasnik SR Srbije, No. 33/1990, 5 July1990. The
Law on the Termination of Work of the Assembly of the SAP Kosovo and the Executive Council of the
Assembly of the SAP Kosovo uses the expression “the termination of work” instead.
53Decision on Dismissal of the Member of the Presidency of the SFRY from the Autonomous Province
of Kosovo and Metohija, Službeni glasnik Republike Srbije, No. 15/1991, 18 March 1991.
54Law on the Termination of Work of the Presidency of the SAP Kosovo, Službeni glasnik Republike
Srbije, No. 15/1991, 18 March 1991.
28of a socio-political community”, whose organisation was governed by their own legal
acts.55
86. The SAP Kosovo Assembly 56 and the Executive Council of the SAP Kosovo 57
were provided for by the Constitution of the SAP Kosovo. Therefore, the Assembly of
the SR Serbia had no power to establish or abolish the Assembly of the SAP Kosovo
or its Executive Council.
87. The Assembly of the Republic of Serbia adopted the Law on the Termination of
Work of the Assembly of the SAP Kosovo and the Executive Council of the
Assembly of the SAP Kosovo without stating the legal basis for its adoption. Instead,
the justification for its adoption was based on the assertion that the Assembly of the
SAP Kosovo and its Executive Council had not been operating in accordance with the
Constitution. Moreover, it was argued that the majority of the Executive Council
members “posed a threat to sovereignty, territorial integrity and constitutional order
of the SR Serbia”. The allegation of unconstitutional actions could not have justified
the actions taken against the Assembly and the Executive Council of the SAP Kosovo.
The alleged criminal offences of undermining the constitutional order and threatening
the territorial integrity of Serbia should have resulted in criminal proceedings against
the suspected individuals, rather than serve as grounds for the abolition of the
constitutional body of the SAP Kosovo.
88. Therefore, the Law on the Termination of Work of the Assembly of the SAP
Kosovo and the Executive Council of the Assembly of the SAP Kosovo was contrary
to the Constitution in its entirety, in particular Articles 2 and 5, although it must be
noted that the Constitutional Court of Yugoslavia never took such a decision.
55Article 132, paragraph 2, of the SFRY Constitution: “Forming, organisation and competence of the
Assemblies of socio-political communities and bodies responsible thereto are regulated by the
56nstitution, statute and law, on the basis of uniform principles determined by this Constitution.”
Article 300, paragraph 1, of the 1974 Constitution of the SAP Kosovo: “The Assembly of the
Socialist Autonomous Province of Kosovo is a body of social self-management and the highest
authority within the rights and duties of the Province.”
57 Article 349 of the Constitution of the SAP Kosovo: “The Executive Council is a body of the
Assembly of the SAP Kosovo. The Executive Council carries out its rights and duties on the basis and
within the framework of this Constitution and laws.”
2989. Article 2 of the law provided for the take-over of the functions of the SAP Kosovo
Assembly and Executive Council: The Assembly of the SR Serbia took over the
responsibilities of the SAP Kosovo Assembly, and the Executive Council of the SR
Serbia the responsibilities of the SAP Kosovo Executive Council.
90. With the date of entry into force of the law, Article 5 provided for the dismissal of
all officials of the Assembly of the SAP Kosovo, all members of the Executive
Council, and all officials of the administrative bodies of the Province.
91. It must be stressed that there was no vertical superiority or subordination between
the assemblies of the SR Serbia and SAP Kosovo or their executive councils;
therefore the Assembly of the SR Serbia could not have taken over the functions of
the Assembly of the SAP Kosovo. The same applies to the relationship between the
two executive councils, since the executive council was only horizontally accountable
to the assembly by which it was elected. Since the officials of the Assembly and
members of the Executive Council of the SAP Kosovo were elected or appointed by
the Assembly of the SAP Kosovo, the latter was the only body possessing the
competence to dismiss them.
92. The law had two direct negative effects:
a) The people of Kosovo were deprived of their constitutional rights to
exercise authority in the SAP Kosovo, and their sovereign rights in the
Federation through provincial bodies.
b) The abolition of the Assembly of the SAP Kosovo hindered and in certain
cases even prevented the exercise of federal functions.
93. By the abolition of the Assembly of the SAP Kosovo, the Chamber of Republics
and Provinces of the SFRY Assembly was no longer a legitimate body since it was
not composed in accordance with the Constitution , as one of its eight delegations,
that of the Assembly of the SAP Kosovo, was no longer represented. The quorum
requirement in the Chamber of Republics and Provinces entailed the presence of all
58
Article 284, paragraph 3, of the SFRY Constitution: “The Chamber of Republics and Provinces shall
consist of delegations of the assemblies of the republics and assemblies of autonomous provinces.”
30eight delegations. 59 Consequently, decision-making on matters which required the
consensus of the assemblies of the republics and provinces (as stipulated by Article
286 of the SFRY Constitution) was made impossible.
94. In the adoption of this law, the rule of law was not respected, and vacatio legis
was not defined, since the act was adopted and entered into force on the same day.
6.1. Decisions adopted on the basis of the new laws - dismissal of a member
of the Presidency of the SFRY and abolition of the Presidency of the SAP
Kosovo
95. In 1991, the reduction of the powers of institutions of the Autonomous Province
of Kosovo continued with the dismissal of a member of the Presidency of the SFRY
60
and the abolition of the Presidency of the SAP Kosovo.
96. At an extraordinary session on 18 March 1991, the Assembly of the Republic of
Serbia, in a fast track procedure, dismissed the member of the Presidency of the
SFRY from Kosovo and abolished the Presidency of the SAP Kosovo, directly
interfering with the work of the Presidency of the SFRY.
97. Here, too, the SR Serbia lacked the legal basis for these two acts. The legal basis
for the introduction and work of the presidencies of the republics and the presidencies
61
of the autonomous provinces was provided for by the SFRY Constitution . The work
of a presidency of any republic was regulated by that republic’s constitution and that
of the presidency of an autonomous province by the constitution of the province.
59Article 295, paragraph 1, of the SFRY Constitution: “The Chamber of Republics and Provinces shall
decide at a meeting, at which all delegations of the assemblies of republics and assemblies of
autonomous provinces shall be represented, and which the majority of delegates in the Chamber shall
60tend.”
These decisions coincided with the crisis within the Presidency of the SFRY following the
resignation of President Dr Jović, as well as with Milošević’s statement that Serbia would not recognise
any decisions of the Presidency of the SFRY. See: “Serbia will not recognize any decisions by the
Presidency of Yugoslavia”, Borba newspaper, Belgrade, 17 March 1991.
61Articles 147, 322 and 324 of the SFRY Constitution and Amendment No. 41.
3198. According to the SFRY Constitution (Article 321) and the Constitution of the SAP
62
Kosovo , members of the Presidency of the SFRY from autonomous provinces were
elected and dismissed by the Assembly of the SAP Kosovo. If the term of office of a
member of the SFRY Presidency from an autonomous province was terminated and a
new member elected, his/her duties in the Presidency of the SFRY were performed by
the President of the Presidency of the autonomous province until the election of a new
member (SFRY Constitution, Article 324 and Amendment No. 41).
99. Therefore, the dismissal of Riza Sapunxhiu, a member of the Presidency of the
SFRY, from the SAP Kosovo, lacked the necessary legal basis. Conversely, the
Assembly of the Republic of Serbia based its decision upon Article 324 of the SFRY
Constitution and Amendment No. 41, as well as Article 2 of the Law on the
Termination of Work of the Assembly of the SAP Kosovo and the Executive Council
of the Assembly of the SAP Kosovo. However, Article 324 (with Amendment No. 41)
stipulated the very opposite, i.e. that the Assembly of the SR Serbia elected and
dismissed only a member of the Presidency of the SFRY from Serbia, and not a
member from the SAP Kosovo. Article 2 of the Law on the Termination of Work of
the Assembly of the SAP Kosovo and the Executive Council of the Assembly of the
SAP Kosovo, in fact, could not have provided a legal basis for these decisions either,
since the Law itself was unconstitutional.
100. The agenda of the session of the Assembly of Serbia on 18 March 1991 initially
included only the dismissal of Mr Riza Sapunxhiu as a member of the Presidency of
the SFRY from the SAP Kosovo. However, during the intermission, a proposal was
made to add the adoption of the Law on the Termination of Work of the Presidency of
the SAP Kosovo to the agenda. The government drafted the Law during the
63
intermission, without stating any legal basis for its adoption.
101. Upon the abolition of the Presidency of the SAP Kosovo, there was a proposal
in the Assembly to abolish also the Presidency of the SAP Vojvodina; however, the
proposal was not accepted at the time.
62
Article 301, paragraph 1, item 20, of the Constitution of the SAP Kosovo: “The Assembly shall
63lect and dismiss the member of the Presidency of the SFRY from the SAP Kosovo.”
“All in two hours”, Borba newspaper, Belgrade, 19 March 1991.
32102. Both unconstitutional acts (the dismissal of Mr Riza Sapunxhiu as a member of
the Presidency of the SFRY from the SAP Kosovo and the abolition of the Presidency
of the SAP Kosovo) were endorsed by the Assembly of the Republic of Serbia at an
extraordinary session on 18 March 1991.
103. In addition, regarding the replacement of a member of the Presidency of the
SFRY from the autonomous province, it is necessary to note the provision of the 1990
Constitutional Act Implementing the Constitution of the Republic of Serbia. The latter
stipulated that a member of the Presidency of the SFRY from the Autonomous
Province should be replaced by the President of the Assembly of the Autonomous
64
Province, which was contrary to Article 324 of the SFRY Constitution.
7. Constitutional changes after 1991
65
104. The adoption of the 1992 Constitution of the FRY concluded the process of
abolishing the autonomy of provinces launched by the Republic of Serbia in 1989
with constitutional amendments and resumed with the adoption of the 1990
Constitution. The Constitution of the FRY, in contrast to the 1974 Constitution of the
SFRY, contained no provisions on autonomous provinces. Article 2 of the
Constitution of the FRY stated that the FRY was comprised of the Republic of Serbia
and the Republic of Montenegro. In contrast to Article 2 of the Constitution of the
SFRY, it did not stipulate that the Republic of Serbia had autonomous provinces.
Within three years, the autonomy provided for by the 1974 Constitution of the SFRY
had been abolished.
105. The legitimacy and legality of the adoption of the 1992 Constitution of the FRY
might also be questionable for two reasons:
a) The Federal Chamber of the SFRY Assembly, which adopted the
Constitution of the FRY, did not have legal grounds for such an action, and had
64
Constitutional Act Implementing the Constitution of the Republic of Serbia, Službeni glasnik
Republike Srbije, No. 1/1990, 28 September 1990, Article 12, paragraph 3: “As of the date of the
termination of work of the Presidency of the Socialist Autonomous Province, the member of the
Presidency of the SFRY from the Autonomous Province shall be replaced by the President of the
Assembly of the Autonomous Province in cases provided for by the SFRY Constitution.”
33 no authority to adopt a constitution. The term of office of the Federal Chamber
elected in 1986 expired in 1990 and was not extended, although this would have
been possible in a state of emergency or time of war (Article 308 of the
Constitution of the SFRY).
b) The procedure for the adoption of the Constitution of the FRY was
inappropriate. It may be inferred from the procedure itself that the adopted act
was null and void. 66
106. Decisions on the amendments to the Constitution of the SFRY were adopted by
the Federal Chamber by a two-thirds majority of all delegates. The amendments also
had to be approved by the assemblies of all republics and autonomous provinces
(Articles 401 and 402). It must be emphasised that at the time of the adoption of the
Constitution of the FRY (27 April 1992), the Federal Chamber no longer functioned,
since the SFRY no longer functioned either. The Badinter Commission observed that
the SFRY was in a process of formal dissolution. Only three months after the adoption
of the Constitution of the FRY, the Badinter Commission established that the SFRY
no longer existed . It can therefore be argued that, rather than adopting the
Constitution of the FRY on the basis of the revision of the Constitution of the SFRY
(Articles 398–403), the actors of the new state should have convened a constitutional
assembly.
107. Following the declaration of independence on 25 June 1991 and the expiry of
the three-month moratorium on activities relating to independence (provided for in the
Brioni Declaration ), the Republic of Slovenia and the Republic of Croatia as well as
65
Constitution of the Federal Republic of Yugoslavia, Službeni list SR Jugoslavije No. 1/1992, 27 April
1992.
66Such an assessment was given by Professor Pavle Nikolić, Faculty of Law in Belgrade, who stated
that from the legal aspect due to the mistakes made during the adoption of the Constitution of the FRY,
the Constitution was null and void. Pavle Nikolić: Mistakes and Legal Voidness of the Constitution of
67e Federal Republic of Yugoslavia of 27 April 1992, Pravni život, Belgrade, No. 7–8/1992.
In its Opinion No. 1 of 29 November 1991, the Badinter Commission established “that the SFRY
was in the process of dissolution”; in its Opinion No. 8 of 4 July 1992, it established “that the process
of dissolution of the SFRY referred to in Opinion No. 1 of 29 November 1991 is now complete and that
the SFRY no longer exists”.
68
At its session on 2 October, the Assembly of the Republic of Slovenia established that the
moratorium under the Brioni Joint Declaration would expire on 7 October 1991 and that there were no
reasons for its extension. The Assembly concluded that further involvement of the representatives of
the Republic of Slovenia in the work of the federal bodies of the SFRY was no longer necessary. See:
Positions and conclusions of the Assembly of the Republic of Slovenia upon the expiry of the three-
month moratorium on the further implementation of independence acts of the Assembly of the
34the Republic of Bosnia and Herzegovina and the Republic of Macedonia were no
longer involved in the work of the Federal Chamber, while the autonomous provinces
of Kosovo and Vojvodina were abolished with the adoption of the 1990 Constitution
of the Republic of Serbia.
108. It must be emphasised that the SFRY procedure for constitutional revision was
inappropriate for the adoption of the constitution of a new state (FRY), since instead
69
of eight members (all of whom were required to endorse constitutional amendments )
only two members, Serbia and Montenegro, were involved in the procedure.
Consequently, the act promulgating the Constitution of the FRY did not state the
constitutional basis for the adoption (on the basis of Article 403, the Federal Chamber
was responsible for promulgating amendments to the Constitution of the SFRY).
Furthermore, the act cited no articles in the Constitution of the SFRY which could
70
justify the signatures of the President of the Federal Chamber or the President of the
71
Assembly of the SFRY .
109. It is important to emphasise that the FRY did not follow the procedure that was
followed by other newly established states of the former SFRY (Slovenia, Croatia,
Bosnia and Herzegovina and Macedonia) in order to obtain the European
Community’s recognition in accordance with the Guidelines on the Recognition of
New States in Eastern Europe and the Soviet Union . Instead, it claimed sole
succession of the SFRY, which was never recognized by the international community
(on succession of the former SFRY see Chapter I on the dissolution of the former
Yugoslavia).
110. Also the State Union of Serbia and Montenegro established on 4 February 2003
with the declaration of the Constitutional Charter of the State Union of Serbia and
Montenegro did not affect the constitutional status of the autonomous provinces.
Republic of Slovenia of 25 June 1991, provided for in the Brioni Declaration of 7 July 1991, Ur. l. RS
No. 16/1991.
69
Article 402, paragraph 1, of the Constitution of the SFRY: “An amendment to the SFRY Constitution
shall be adopted when the Assemblies of all Republics and Autonomous Provinces, i.e. Assemblies of
all Republics, agree with the text adopted by the Federal Chamber of the SFRY Assembly.”
70Bogdana Glumac – Levakov.
71Dr Slobodan Gligorijević.
72Declaration on the Guidelines on the Recognition of New States in Eastern Europe and the Soviet
Union (16 December 1991).
35Serbia introduced a regime that had been initiated with the 1990 Constitution and
which remained unchanged after the adoption of the Constitution of the Federal
Republic of Yugoslavia in 1992. The concept of “territorial autonomy” was preserved,
73
whereby the 2006 Constitution of the Republic of Serbia refers only to citizens who
74
exercise their right to the autonomy of provinces, and not to “citizens (residents),
nations and nationalities”, as provided for by the SFRY Constitution and also by the
Constitution of the SR Serbia of 1974.
CONCLUSION
111. The analysis of the legal history and other events shows that the Constitutional
amendments of 1989 and the laws adopted on these bases regarding the action against
the autonomy of Kosovo were a violation of 1974 SFRY Constitution and of the rule
of law principle. In this process gross violations of human rights and freedoms were
also committed. This resulted in lawlessness, which deprived numerous members of
Kosovo Albanians of their rights, employment, education, etc. For all these reasons,
the belief prevailed that the majority of the Kosovo population was no longer willing
to return to Serbian power, as the Republic of Serbia had not only abolished Kosovo’s
status as an autonomous province, but had also committed unlawful violent acts
against the majority of the Kosovo population.
Simona Drenik
Minister Plenipotentiary
Head of International Law Division
73
74Constitution of the Republic of Serbia, Službeni glasnik Republike Srbije, No. 98/2006.
Article 182, paragraph 2, of the 2006 Constitution of the Republic of Serbia.
36
Written Comments of Slovenia