Albanian and Serb rivalry in Kosovo: Realist and universalist perspectives on sovereignty V pavlaković and S. P. Ramet

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Albanian and Serb rivalry in Kosovo:

Realist and universalist perspectives on sovereignty
V Pavlaković and S. P. Ramet
The people of Kosovo have a right to self-determination. They [enjoy] – just like the Croatians and the Slovenians did, and just like those in Bosnia who wanted to be not under Milošević’s heel or the Serbians’ heel, and just like the people of the United States had a right as we declared ourselves as in 1776, the right to dissolve the political bonds.

  • U.S. Representative Dana Rohrabacher (R-Calif.)1

just imagine the outcry if, during our civil war, Great Britain would have invaded the North to “punish” Abraham Lincoln for his militant defense of the Union. Kosovo is a part of Yugoslavia and Belgrade has every right to defend its national borders.

  • Bill Hughes2

In an essay originally published in 1960, Hans Kelsen, the brilliant if controversial specialist in international law, held that international law and the laws of any given state cannot both be primary; one must take precedence over the other.3 If, Kelsen argued, one posited the primacy of international law, then there can be no room for state sovereignty as such.4 But if, on the other hand, one chooses to affirm the primacy of state sovereignty, then, for Kelsen, one must accept that this entails acceptance of the maxim “…that the state is not subject to a legal order superior to its own national law.”5

Kelsen tried to resolve this dilemma by holding that the state’s subscription to international law was voluntary; in this way, he hoped to salvage the binding character of international law without sacrificing the concept of state sovereignty. But the difficulties do not end there. After all, the notion of popular (or national) sovereignty may be marshalled against that of state sovereignty. If the people are sovereign, or so Locke held, then it would follow that

…if a long train of Abuses, Prevarications, and Artifices, all tending the same way, make the design visible to the People, and they cannot but feel, what they lie under, and see, whither they are going: ‘tis not to be wonder’d, that they should then rouze themselves, and endeavour to put the rule into such hands, which may secure to them the ends for which Government was at first erected.6

The doctrine of state sovereignty faces a second challenge, thus, from those who would make the People the ultimate repository of sovereign authority.7

Jacques Maritain has offered a Gordian solution, by declaring the concept of state sovereignty “intrinsically wrong”, by which he means morally wrong.8 Tracing the doctrine of state sovereignty to the rise of absolute monarchies, Maritain treats the rival notion of popular sovereignty as a bastard extrapolation from the false (for him) doctrine of state sovereignty; for him, the doctrine of popular sovereignty is, moreover, a contradiction in terms.9 Ultimately, for Maritain, neither international law nor state sovereignty can be said to possess the moral credentials necessary to constitute the primary point of reference determinative of both national and international norms. Maritain locates this point of reference, however, in Natural Law (Universal Reason) from which, he argues, the right of people to self-governance proceeds.10 But which people? And within which territorial borders? If the case of Serbia may be adduced, shall such right be restricted to the people of the Republic of Serbia taken as a whole, or may specific groups, aggregated regionally, as, for instance, in Kosovo, also lay claim to such right, even if against the declared right of the whole?

In the chapter which follows, we shall show how rival understandings of sovereignty have been reflected in rival positions in the dispute over Kosovo and argue that where Belgrade’s official line has adhered to traditional principles of Hobb’sian “realism”, with the Albanians making an appeal to a nationalist version of the doctrine of popular sovereignty, stability and respect for human rights can only be grounded on the foundation of political legitimacy and an understanding of sovereignty compatible with the teachings of the sixteenth-century philosopher Bodin, who “…set out to combat the sceptical trends of his age and to find a new basis of divine and natural right among human beings,”11 in the process setting certain limits to the authority of the sovereign. We shall begin by briefly tracing the development of the idea of sovereignty, then look at how arguments about sovereignty have figured in the debates surrounding Kosovo, examine the historical roots of the independence movement among Kosovar Albanians, and finally, outline the political and economic conditions within the province, as well as the reaction of both the Belgrade government and the international community to the Albanians’ political strivings, concentrating especially on the years 1989—present.


In a recent work, Stephen Krasner has argued that the norms of sovereignty should not be viewed as guiding principles of the international order but as “cognitive scripts” which are “instrumentally useful” to heads of state.12 On this view, states simultaneously want to preserve norms of sovereignty and violate them when it serves their interests to do so. This “instrumentalist” view is set against the “constructivist” view of those who argue that states attune their behavior to generalized notions of appropriateness.

The contemporary debate between instrumentalists and constructivists mirrors, up to a point, a much older debate between those who, like Jean Bodin (1529/30—1596), have sought to set moral limits to the authority of the secular sovereign,13 and those who, like Thomas Hobbes (1588—1679), have emphasized instead the supremacy of the sovereign, entrusting to him even the authority to interpret Divine and Natural Law for the body politic.14 For Bodin, the authority of the sovereign is, of necessity, limited by leges naturae et divinae (Natural and Divine Law), by international law, and by the laws of the realm, if only because sovereign authority derives from those very legal and normative frameworks.15

But for Hobbes, these appeals to divine and natural law disappear into thin air on the argument that the law does not interpret itself. It follows that someone must have the sovereign power to interpret those laws; indeed, for Hobbes, sovereignty itself consists, in part, in the authority to serve as the ultimate arbiter of Divine and Natural Law. By Hobbes’ time, the earlier aspirations of the Church to such authority already seemed anomalous, while Hobbes had no patience with claims on behalf of popular sovereignty. For Hobbes, no group of citizens can ever constitute more than a mere “crowd” and, Hobbes argues, “a crowd is not a natural person” and, therefore, does not enjoy specific rights.16

Historically, of course, the notion of sovereignty had its incunabulum in theories of divine law, such as that of Francisco de Vitoria, a legal scholar active in the early sixteenth century, who argued that sovereign power was derived from, validated by, and ultimately contingent upon its conformity with divine law.17 Yet, within the constraints set by divine law, Vitoria nonetheless salvaged a strong concept of state sovereignty, arguing that “the State may in no wise be deprived of this power to protect citizens and to guard against every injury from its own citizens or from aliens…[and even] if all the citizens should agree to dispense with these powers…the[ir] agreement would be null and void, being contrary to natural law.”18 The concept of sovereign assumed a more formal character in connection with the development of the concept of the divine rights of kings and designated the natural and inalienable right of the king to rule society from above.19 It gained force from the Treaty of Westphalia (1648) and associated covenants, in the course of which the sovereign’s authority in the religious sphere was affirmed and demarcated under the principle, cuius regio, eius religio. 20 But the subsequent development of theories of sovereignty has failed to establish a single uniform standard for assessing claims of sovereignty or demarcating the rights of sovereign authority. Instead, we have inherited three alternative views: state sovereignty, tracing its heritage to Hobbes, emphasizing the alleged rights of recognized governments and regimes, and expressed most recently in the claims registered on behalf of Slobodan Milošević’s alleged rights to formulate and pursue such policies in Kosovo as he sees fit, without regard to life or limb; popular sovereignty, tracing its heritage to John Locke (1632—1704),21 emphasizing the alleged rights of people to challenge their government and, in certain circumstances, to secede from the jurisdiction of their government or overthrow it altogether, and expressed in arguments in favor of Kosovar Albanian separatism; and what we may call sovereignty defined by the moral law, which may trace its heritage to Bodin and which locates sovereignty in the relationship between government and governed but which also factors in the moral law -- as understood at the time -- as a component of legitimate authority.22 On the relational view, thus, one must, in the first place, distinguish between legitimate and illegitimate authority, and hence also between legitimate and illegitimate sovereignty.

These three rival theories of sovereignty have underlain the rival arguments registered on behalf of the Milošević regime, the separatist aspirations of Kosovo’s Albanians, and solutions premised on the reconstruction of local politics along classical liberal lines.

Although the dispute between Serbs and Albanians over Kosovo may be traced at least as far back as the late nineteenth century, it assumed the form of a clash of formal claims to sovereignty on 19 October 1991, when the underground Assembly of Kosova met clandestinely and adopted a decree, declaring that “the Republic of Kosova is a sovereign and independent state.”23 The subsequent recognition of the declaration by neighboring Albania24 and election, the following May, of Dr. Ibrahim Rugova as President of the Republic of Kosova25 consolidated the Albanian counterclaim. From then until the resignation of Rugova’s government on 2 February 2000,26 in the wake of the NATO aerial campaign against the Federal Republic of Yugoslavia (FRY) in spring 1999, this underground government served as the vessel for Albanian claims to sovereignty.

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