North Kosovo as a political and administrative phenomenon.

Nagy, Attila

Introduction

A long history of political thoughts and decisions was always full of new inventions, agreements and solutions. It is not always easy to understand the new solutions and apply them in practice that is why we try to explain them through some other well known institutions and apply practical outcomes to those political decisions or solutions. In this work we will deal with a certain "phenomena" which is popularly known as North Kosovo, since it covers the territory of four municipalities on the North of The Republic of Kosovo and they have a Serbian majority population.

The establishment of this political entity is going back in time and history and we will not discuss it in this work, the fact is that the Serbian majority is native on the North and is one of the very few regions inhabited by Serbs today in Kosovo. The establishment of this territory as a political subject has its roots in the time when the Republic of Kosovo was established. From that moment a new law, state and political administration has been introduced on the territory of Kosovo which was a part of Serbia and according to Serbian legislation still is today.

From this moment we have an application of two different legal and political systems on the territory of Kosovo, the Serbian and the Kosovo system which has been previously established by the UNMIK (United Nations Mission in Kosovo) administration. So there is no loophole in the sense of the lack of law since there are two laws applicable, or at least applicable on the North Kosovo. This has caused many problems and now or specifically one year ago on April 19th 2014 a considerable effort was put in by both the Serbian and Kosovo governments to reach some agreements. On the end the parties have signed, under the close supervision and control of the EU, the historical "Brussels agreement". Now this agreement is being implemented and its different parts which were left for further development are still under "construction" and the final solutions and paths leading to them will be agreed in the future. There are many topics covered in this agreement and we will focus on the ones which are dealing with the political status of North Kosovo as a specific political "phenomena" in the framework of the Association of Serbian Municipalities.

Geographical, statistical and other data

The geographical area of North Kosovo constitutes of four Municipalities from which the newest and the most interesting one is North Mitrovica (Kosovska Mitrovica). It has a territory covering the parts of the city of Mitrovica which are North of the river Ibar, it also comprises of several villages which have a majority population of Albanians (OSCE, Mitrovice/Mitrovica, 2013).The territory is not very big but the density of population is very high, approximately 22,530 inhabitants. At this moment the establishment of the Mitrovica North municipality is in procedure and the Serbs from the city and other parts of North Kosovo can use the services of the Mitrovica North Administrative Office of the Kosovo government. The purpose of this office is to gather all the responsibilities of a municipality and then be able to transfer them to the municipality once it is established. Municipality Zvecan (Zvechan) has a territory of 122 [km.sup.2] and a population of 16,000 Serbs from a total of 17,000 (OSCE, Zvecan/Zvecan Municipal Profile, 2013) and is very close to the city of North Mitrovica, only the big hill of the ancient Zvecan castle is dividing these two cities. There is a road connecting the two cities and a railroad as well, the railroad is in function which is very rare in Kosovo. The once big Trepca (Trepcha) mining factory is lying empty just next by the Zvecan train station.

Municipality Zubin Potok has a territory of 333 [km.sup.2] and is lying on the west from Zvechan, and bordering the municipality of Novi Pazar in Serbia. The road from Zubin Potok is one of the few connections to Serbia via the famous Gazivode lake and the checkpoint Brnjak which is just next to the lake. It has a population of 13,900 Serbs out of 14,900 total where the 1000 inhabitants are Albanians from the village of Chabra/Cabra (OSCE, Zubin Potok, Municipal Profiles, 2013).

Municipality of Leposavic has a territory of 750[km.sup.2] and is lying on the north of Kosovo just next to the Kopaonik Mountain, and a population of 18,000 Serbs out of 18,900 total (OSCE, Leposavic/Leposaviq, Municipal Profiles, 2013). It has a road which is connecting Serbia and Belgrade with North Kosovo via the famous checkpoint Jarinje which was a place of many incidents. The importance of this road is very high and is used to transport goods from Serbia to Kosovo, an alternative road is being build and will connect Prishtina with the Highway in Serbia close to the city of Nish.

Number of citizens on the North Kosovo is a data which can be influenced by many factors and for the purpose of this work we will use the number of voters from the recent elections. These elections have been conducted as part of the Brussels agreement (Voice, 2013) and have been delayed for various reasons. The importance and influence of the region can be understood if we take the number of voters registered in the Kosovo register from recent elections. North Mitrovica according to the Central Election Commission of Kosovo has 27,915 registered voters. The same source is used to determine the number of voters in Zvechan which is 9,986 voters, in Zubin Potok 8,948 and in Leposavic is 31,686 voters. The political decision making power is the most important value of this region and the strength can be clearly seen from the number of the voters. Many people who fled from the South are registered here and are able to vote according to their place of residence. These people do not have a status of refugees but of internally displaced persons since in Serbia they are coming from a southern province of Serbia and in Kosovo they have moved from one part to another. Similar stands for the Albanians who lived once on North Kosovo.

The most important fact is that the four municipalities are inhabited by ethnic Serbs and is representing the main body of Serbian minority in Kosovo. In some villages and peripheral regions of these municipalities some Albanian villages could be found. There are no mixed and multiethnic communities villages or cities and some notable examples could be found in Mitrovica where the two nations meet in the Bosniak mahala by the eastern bridge, The Three towers settlement close to the main bridge and Micro naselje settlement up on the hill where the famous Mitrovica miners monument stands. These zones are the remains of the once multicultural city and show us how people lived once close to each other. Also these settlements are the places where ethnic conflicts have occurred and are most likely the place where some misunderstandings could happen in the future.

Constitution and legislation in Serbia

The importance of Kosovo issue has called in for action of the Serbian law making bodies and has as one of the steps introduced a new constitution. In 2006 a new constitution was made and one of the most interesting parts was the preamble which deals specifically with the territory of Kosovo and Metohija which was at that time on the territory of Serbia but under the supervision of the UN (United Nations) according to the United Nations Resolution 1244 (Nations, 1999). The Serbian Constitution preamble reads as follows: Considering the state tradition of the Serbian people and equality of all citizens and ethnic communities in Serbia. Considering also that the Province of Kosovo and Metohija is an integral part of the territory of Serbia, that it has the status of a substantial autonomy within the sovereign state of Serbia and that from such status of the Province of Kosovo and Metohija follow constitutional obligations of all state bodies to uphold and protect the state interests of Serbia in Kosovo and Metohija in all internal and foreign political relations, the citizens of Serbia adopt (Serbia N. A., 2006). The importance of Kosovo and Metohija, what is the official Serbian name for the territory of Kosovo is clearly outlining the importance of this territory for the Serbian state and calls in for action of all the responsible bodies to protect the state interests. It is a very important task and has to be backed up by different laws on which such actions have to be based. The unclear obligation of the Serbian state has to be viewed in the sense that Serbia does not in fact has and holds all the rights and obligations a state has in Kosovo, since it is administered by the UN after the bombing of Serbia in 1999. It is clear that Serbia has given up some rights according to the UN resolution 1244, but back in 1999 Yugoslavia was the one who signed that document and Serbia was just an integral part of that state. The disappearance of Yugoslavia also asks the question from whom Kosovo was taken and in this case it is clear that it was previously an integral part of Serbia. In 1999 Yugoslavia was a small federation of Serbia and Montenegro, the last has never contested the fact that Kosovo was in Serbia but after gaining independence Montenegro has also recognized Kosovo as an independent state in 2008.

Also the substantial autonomy which is granted to Kosovo according to the preamble is not clear and by the de facto situation present since 1999 and the level of development shows that some laws and institutions go in favor of the fact that Kosovo is more a state than anything else. The dependence of Kosovo on some foreign help is still visible even today in 2014 after almost 15 years of being separated from Serbia.

Another level of legal protection to Kosovo and Metohija is given in the oath which has to be given by the Serbian president. The text of the oath reads as follows: "I do solemnly swear that I will devote all my efforts to preserve the sovereignty and integrity of the territory of the Republic of Serbia, including Kosovo and Metohija as its constituent part, as well as to provide exercise of human and minority rights and freedoms, respect and protection of the Constitution and laws, preservation of peace and welfare of all citizens of the Republic of Serbia and perform all my duties conscientiously and responsibly." In the wording of the oath it is visible that the sovereignty of the Republic of Serbia treats specifically Kosovo and Metohija or treats it in a specific manner if needed, the way of treatment is not clear but it does mean that the president of Serbia has to devote a certain period of time or efforts when it comes to Kosovo. The president does need to treat Kosovo as a constituent part of Serbia, but once again the wording and obligations are rather unclear. Certainly the door for Kosovo as a part of Serbia with a high level of autonomy is left open and for a certain period of time, or even now, this option is supported by some government officials. Different institutions treat this territory and its citizens differently, so it is not possible to say that this vague obligation of the president can influence them or the situation. It also has to be outlined that the President does not take part in the Brussels meetings where both the Prime Minister and the First deputy of prime minister of Serbia both have a say. So far the president has not influenced officially the outcomes neither took part what could be his task. The Constitution also defines the status of autonomous provinces in Serbia in its Article 182. An important part of this article reads: In the Republic of Serbia, there are the Autonomous Province of Vojvodina and the Autonomous Province of Kosovo and Metohija. The substantial autonomy of the Autonomous province of Kosovo and Metohija shall be regulated by the special law which shall be adopted in accordance with the proceedings envisaged for amending the Constitution.

The two autonomous provinces of Serbia have had in the past 50 years a very similar treatment. In the Yugoslav era and constitutional framework they had more autonomy but later after the dissolution of the Socialist Federative Republic of Yugoslavia in the 1990s the autonomies have been deeply cut. It is not a question that human rights were or were not obeyed, but clearly the legal and factual root of the modern day Kosovo problem dates back to these times. The special law which will regulate the Kosovo and Metohija issue will have to be in the opinion of the author way to specific since the present constitutional framework will not apply to the de facto situation of the "Autonomous province of Kosovo and Metohija". Also the Serbian government which will be newly established shortly after the one year anniversary of the Brussels agreement will have the capacity to legally back this agreement in the Serbian legislation and even get support for a new constitution if needed.

Constitution and legislation in Kosovo

The Constitution of Kosovo entered into force on 15 June 2008 (Parliament, 2008). We will now examine its articles which are relevant to our topic and try to apply the legal framework to the de facto situation on North Kosovo and the de iure situation after the Brussels agreement. In article 1 the constitution defines the state and says among others in paragraph 1that the state of Kosovo is indivisible state. A similar idea is found in the Serbian constitution but here it is not clear why and how it could be divided. We can conclude that the division of the state is by this article prevented and no authority, president, prime minister or the government can agree to any act which could endanger or divide the territory of Kosovo. In article 16 we have an idea which is the characteristic of every constitution and it says it is the highest act in a state, but in paragraph 3 it says that Kosovo shall respect International law. It is not clear how that international law will come to force in Kosovo since the law could be made without Kosovo or its consent and still have effects. On the other hand International agreements are clearly defined in the constitution which could even deepen our ideas about the law. Also in article 19 the constitution separates the tern of International agreements from binding norms of international law. In the scope of the presidents of Kosovo duties among others in article 84 the first in paragraph one says that the president should represent Kosovo both internally and externally. We are here in doubt if the president has just formal obligations or is really empowered to represent the nation in front of international organizations and other states. Also here in this article in paragraph 7 it says that the president signs international agreements, but maybe not all of them. The prime minister also has duties according to art 18 in regard int. agreements, but it is still not clear where from applicable international law could come from.

When it comes to the local self-government the constitution gives a lot of rights to municipalities. In article 123 it is stated that Kosovo respects the European Charter on Local Self Government in the same volume as its signatory states. The importance of municipal and local authorities is much higher in Europe and the importance to further develop them is visible both in Europe and Kosovo. This is going to be once again mentioned in the Brussels agreement. And similarly in article 124 paragraph 4 the constitution gives the rights for inter-municipal cooperation just as the Brussels agreement.

In the final provisions we can find article 143 which calls upon a special document when it comes to the understanding of the Kosovo constitution. The "Comprehensive Proposal for the Kosovo Status Settlement" has the following role in the Kosovo legal system: "The Constitution, laws and other legal acts of the Republic of Kosovo shall be interpreted in compliance with the Comprehensive Proposal for the Kosovo Status Settlement dated 26 March 2007. If there are inconsistencies between the provisions of this Constitution, laws or other legal acts of the Republic of Kosovo and the provisions of the said Settlement, the latter shall prevail." (UNOSEK, 2007) This act obviously stands above the constitution and the way it was made supposes that other acts can be imposed in the same way. Kosovo has a complete and understandable Constitution but this "Proposal" which was accepted on the end is making the understanding and application of the constitution more unclear and starting from the constitutional court and other state bodies it could cause some misunderstandings. This Proposal serves as a key to the constitution and the future development of Kosovo. The sources of Kosovo laws are more complicated than in a usual newborn state. This unclear path shows that using the same pattern other laws can also come above the constitution of Kosovo and in some way change or annul the effect of some of its articles. Now the outstanding question is whether and how could the Brussels agreement change and influence the positive legal order present in Kosovo. One of the interesting points could be also to find out if the Brussels agreement is in line with all the positive laws in Kosovo, it should be on the end.

Brussels agreement and its outcomes

The Brussels agreement or First Agreement of Principles Governing the Normalization of Relations (Voice, 2013) does not have many decisions and is mainly serving as a guideline for future negotiations. It is historic in a sense that Serbia and Kosovo have started to cooperate and even more important that they have established a benchmark, this agreement tries to cover the loopholes which have been present on the territory of North Kosovo, it does not specifically deal with the recognition of Kosovo but shows considerable efforts to recognize some authority. Unfortunately the opinions stated here need to be transferred to the field what causes and could cause many problems. One of the focuses is the territory of North Kosovo which is in some legal loophole and the fact that Serbia will transfer some rights to Kosovo does not guarantee the solution to the problem. The core of the problem was not legal and even by having a presence of military and other law enforcement personnel, human rights were never fully respected here. In the first six points the Brussels agreement is dealing with the formation of a Municipality association of the municipalities which have a Serbian majority. The agreement does not define the name of this grouping and is unclear by using sometimes "Association/Community" and "Community/Association" in different sentences. In the legal sense this switch can be understood differently and could be also that the writers of the text did this on purpose. When it comes to understanding of separate points of the agreement which deal with many things the focus will be on individual sentences and this wording could play an important role. In our opinion the word Community has a stronger and more independent meaning and stands for marking something which is more different or specific. This wording is also an outcome of the lack of agreement of what that Serbian municipality group should be. From the text it is obvious that whatever it tends to be it will work in the framework of the Kosovo law and European Charter of Local Self Government. This gives a clear stand to this grouping and does not let it go outside of the Kosovo legal framework. One of the most important points is: "The Association/Community will exercise other additional competences as may be delegated by the central authorities." This possibility, if exercised at all, could transfer some important authority which could be specific and not usual for municipalities. It could make some positive discrimination in the sense that more rights will be given or les obligations requested from this grouping. But still in overall the rights will have to stay in the framework of the acts applicable to this grouping by Brussels agreement, namely Kosovo law and the European charter of Local Self Government. The agreements about Police and Courts/Judges is not giving any particular rights and does not differ from the court structure in some multicultural areas. It is important that such principles are implemented here since other solutions would not bring the conflict to an end or make advance in this divided area. Another important issue is the energy and telecom distribution. These services and benefits have been the most important field of misuse on North Kosovo and have caused problems not just in the region but in Serbia as well. In one word the goods and services offered on North Kosovo are not covered neither by Kosovo or Serbian law and system, the business activities have not been registered previously and have made a lot of opportunity for smuggling and the development of the black market. The point dealing with EU integration is a very important one if we know the parallel practices of different states blocking their neighbors in the EU integration. We are still unclear what "block" means and if it covers the legal way of requesting something which is based on rights and standards or just something what is known and has happened in the practice and process of EU accession.

Solutions from the past or the Dayton peace agreement

The long lasting practice of conflict resolution in the area of ex-Yugoslavia is giving us an example of a solution achieved in 1995 which brought to an end the war in Bosnia and Herzegovina. There are many similarities between the Dayton agreement and the Brussels agreement, mostly the problem of division and the diplomatic efforts to solve it. The Dayton Peace Agreement (Council, 1995) was the agreement which has established the independent state of Bosnia and Herzegovina and its purpose was to make the three nations make live in one state. The signing parties were represented by the presidents of states and in this fact we see that there is a difference from the Brussels agreement. It is no doubt that the presidents of Croatia Franjo Tudjman, Bosnia and Herzegovina Alija Izetbegovic and Serbia Slobodan Milosevic were the most influential persons in those states and probably in the conflict which took place on the territory of Bosnia and Herzegovina. The authority is not disputable but still we have after some almost two decades a very similar agreement where the prime ministers play the most important role of meeting, discussing and signing. One argument could be that the Dayton agreement was made mainly with the support of The United states of America where the president has the role and duty to sign such agreements while in EU the prime ministers are the ones who play an important role in developing state policies. The prime ministers are the ones who always have support in the Parliament of a certain state and can by using the law making procedure easily apply International agreements into the local legal system. The authority which the Dayton agreement has acquired by being guaranteed by the leaders of once conflicting states is making it so hard to change that even today, it is not possible to agree on so many things as back then in 1995. A big part of the authority is also hidden in the fact that many International stakeholders took part in preparation, one of whom is the United States of America. Similarly to Dayton in Brussels we have the High Representative of the EU for Foreign Affairs and Security Policy, namely Baroness Catherine Ashton. It is obvious that the EU has interest of solving disputes on the European continent, but in the opinion of the author the broad acceptance of such agreements by the international community like in the case of Bosnia could cause some concerns in the future coming from multiple sides and stakeholders. The Kosovo case and its solution never got so wide international recognition as the Bosnian and it could cause some misunderstandings, as we see on recent case in Ukraine, Crimea etc. The Author believes that without a final say and approval of the Security Council of The United Nations the Brussels agreement is still just technical. Also the example of Dayton could have been successfully followed both in the region and worldwide for conflict resolution. Certainly the Brussels agreement will not be used as a bright example for future agreements if long lasting solutions are needed and international approval is necessary.

Conclusion

The phenomena of North Kosovo has got with the Brussels agreement a certain level of importance, it is on its way from an out of law region to a constitutive part of the Republic of Kosovo. The Serbian state has given up the title and the part of the sovereignty it had over this territory, although it had never exercised it fully after 1999. The specific situation which was present has its roots in a series of misunderstandings between Kosovo, the International community and Serbians living here. It is even today not clear how the Brussels agreement will be accepted by the people in North Kosovo since so far they did everything to cancel it. The novelty is that the Serbian state is now applying the Brussels agreement and is not silently supporting the Serbian community on the North. It is not possible to maintain the level of independence from Kosovo institutions any longer and the citizens from North Kosovo will be now forced from two sides. The support from Serbia was both financial and institutional and this will and is now cut down. Apart from leaving some loopholes they will be soon covered by the government in Prishtina. The unfortunate situation is that the whole issue of North Kosovo has got a big international value and is being dealt from the EU foreign policy directly. It shows that this region got its future in future EU policies and will be of importance to both Serbia and Kosovo in their future connections and everyday life. Another issue is that with this agreement it is very clear that the Kosovo state got divided with a sharp division line between the Northern municipalities including some Serbian municipalities from other parts of Kosovo. This division line was very strong previously but with this agreement it got a specific status which will certainly not be changed in the near future. Also the future of Kosovo as multiethnic state is now under revision and could be a state of multiple nations since it is hard to imagine that Serbian municipalities will ever consider Kosovo as their homeland. For the ordinary citizens of Kosovo, Albanians, this agreement has no specific value since in their lives not many changes will happen. The future goal of joining the EU is now closer than it was earlier since it is officially encouraged but the efforts needed to achieve it are very far from the society which struggles to survive in the world of International norms and lack of basic human rights. On the end we come to legal questions and at this point it is very hard to answer them all. We can certainly conclude that with the Brussels agreement Kosovo got a long awaited step forward, it is getting closer to EU and some International organizations. The first step is always very hard but the rest will also require some changes and the democratization of the society by implementing laws and standards. This process was present in many Ex Communist European states, in Ex Yugoslav states and very present today in Serbia among which is this famous Brussels agreement which could have been never done without the EU and its efforts and values.

Acknowledgement

Note of the author sent to RSP Editorial Board on May 6 2014: the sources used for the article "are not mainly books since the work itself is genuine and shows a real life situation and a case study where no literature is available yet"

References

Council, S. (1995, November 30). Agenda item 28, The situation in Bosnia and Herzegovina.

Nations, U. (1999, June 10). UN. Retrieved 04 21, 2014, from Resolution 1244: http://www.unmikonline.org/Pages/1244.aspx

OSCE. (2013, April 22). Leposavic/Leposaviq, Municipal Profiles. Leposavic, Kosovo, Kosovo.

OSCE. (2013, April 22). Mitrovice/Mitrovica. Mitrovica, Kosovo, Kosovo.

OSCE. (2013, April 22). Zubin Potok, Municipal Profiles. Zubin Potok, Kosovo, Kosovo.

OSCE. (2013, April 22). Zvecan/Zvecan Municipal Profile. Zvecan, Kosovo, Kosovo.

Parliament, K. (2008, Jun 15). Constitution of The Republic of Kosovo. Pristina, Kosovo, Kosovo.

Serbia, N. A. (2006, September 30). Constitution of the Republic of Serbia. Belgrade, Serbia, Serbia.

UNOSEK. (2007, March 26). The Comprehensive proposal for Kosovo Status Settlement. Retrieved 04 23, 2014, from United Nations office of thespecial envoy for Kosovo: http://www.unosek.org/unosek/en/statusproposal.html

Voice, E. (2013, 04 19). Text of historic agreement between Serbia and Kosovo. Retrieved 04 17, 2014, from European Voice: http://www.europeanvoice.com/page/3609.aspx?&blogitemid=1723

Article Info

Received: April 25 2014

Accepted: May 6 2014

Attila Nagy* **

* LLM International Business Law, Lecturer of Law and Public Administration, International Business College Mitrovica, Mitrovica, E-mail: a.nagy@ibcmitrovica.eu