Earned sovereignty: the road to resolving the conflict over Kosovo's final status.

AuthorWilliams, Paul R.

The classic nineteenth-century concept of sovereignty, even if it rarely pertained in practice, was a concept of absolute territorial sovereignty. In the twenty-first century, sovereignty is necessarily shared and dependent on agreements with a range of international actors. (1)

--Independent International Commission on Kosovo

Chaired by Justice Richard Goldstone

INTRODUCTION

This article is the third in a series of three articles which discuss the emerging doctrine of "earned sovereignty." (2) The first article provided a detailed definition of earned sovereignty, and its sub-components, and explained the historical and political basis for the doctrine. The second article set forth the legal basis for the doctrine. This article explores the competition between self-determination and sovereignty in the conflict between Kosovo and Serbia, and tracks the efforts of the international community to rely on the doctrine of earned sovereignty to resolve the conflict.

The purpose of this article is to promote a more complete understanding of the approach of earned sovereignty by examining in detail its role in efforts to resolve the Kosovo conflict. To accomplish this purpose, the article explains how the approach of earned sovereignty shaped the international community's response to the conflict in Kosovo, and how, if properly applied, it may help to bring about a resolution of this particularly vexing sovereignty-based conflict; and thereby enhance prospects for a long term peace in the region. The article also tracks the substantive evolution of the approach from 1998 to the present, and explores the extent to which policy makers and others adapted the approach in response to the changing factual situation of the conflict, and the perceived viability of the approach as a means for resolving the conflict. Finally, the article highlights the highly fluid nature of "sovereignty" in the context of the Kosovo conflict.

As noted in the introductory note (3), the conflict-resolution approach of earned sovereignty essentially seeks to resolve the centuries-old tension between self-determination and sovereignty by managing the devolution of sovereign authority and functions from a state to a sub-state entity. In some instances the sub-state entity may acquire sufficient sovereign authority and functions which will then enable it to seek international recognition, while in others the sub-state entity may only acquire sufficient authority and functions to enable it to operate within a stable system of internal autonomy. (4)

The conflict resolution approach of earned sovereignty may be characterized as encompassing six elements--three core elements and three optional elements.

The first core element is shared sovereignty. In each case of earned sovereignty the state and sub-state entity may both exercise sovereign authority and functions over a defined territory. In some instances, international institutions may also exercise sovereign authority and functions in addition to or in lieu of the parent state. In rare cases, the international community may exercise shared sovereignty with an internationally recognized state. In almost all instances an international institution is responsible for monitoring the parties exercise of their authority and functions.

The second core element is institution building. This element is utilized during the period of shared sovereignty prior to the determination of final status. Here the sub-state entity, frequently with the assistance of the international community, undertakes to construct institutions for self-government and to build institutions capable of exercising increasing sovereign authority and functions.

The third core element is the eventual determination of the final status of the sub-state entity and its relationship to the state. In many instances the status will be determined by a referendum, while in others it may involve a negotiated settlement between the state and sub-state entity, often with international mediation. Invariably the determination of final status for the sub-state entity involves the consent of the international community in the form of international recognition.

The first optional element is phased sovereignty. Phased sovereignty entails the accumulation by the sub-state entity of increasing sovereign authority and functions over a specified period of time prior to the determination of final status.

The second optional element is conditional sovereignty. Conditionality may be applied to the accumulation of increasing sovereign authority and functions by the sub-state entity, or it may be applied to the determination of the sub-state entity's final status. In either case the sub-state entity is required to meet certain benchmarks before it may acquire increased. These benchmarks may include conditions such as protecting human and minority rights, developing democratic institutions, instituting the rule of law, and promoting regional stability. While the relationship between the attainment of certain benchmarks and the devolution of authority, or recognition as an independent state may be formally expressed, there may often be an informal relationship.

The third optional element, constrained sovereignty, involves continued limitations on the sovereign authority and functions of the new state, such as continued international administrative and/or military presence, and limits on the right of the state to undertake territorial association with other states.

In almost all instances the state and sub-state entity progress through the phases of earned sovereignty by mutual agreement, but in some instances, such as Kosovo, the international community may support or initiate one or more of the phases of earned sovereignty against the wishes of the state or sub-state entity.

As a relatively new approach to conflict resolution, earned sovereignty, has been referred to by many names, including intermediate sovereignty, phased recognition, provisional statehood, and conditional independence. Conflicts in which variations on the approach of earned sovereignty have been proposed or applied include the Palestinian Road Map for Peace (with provisional statehood); the Northern Ireland Accords (with a referendum for independence and unification with Ireland after seven years); East Timor (with phased sovereignty leading to full independence); the Sudan Machakos Protocol (with an independence referendum by Southern Sudan after six years); the UN proposal for Western Sahara (with shared sovereignty for four years and then an independence referendum by the fifth year); the transformation of the FRY into the Union of Serbia and Montenegro (with provision for a referendum on Montenegrin independence within three years); the recent proposal by President Musharef of Pakistan for a Roadmap for Peace for Kashmir, and most recently the initiation of the Philippine/Moro Islamic Liberation Front negotiations (with the express conditioning of US financial assistance on progress in a number of areas).

As will be discussed below, in the case of Kosovo the approach of earned sovereignty was developed in an ad hoc and halting manner beginning as a proposed initiative by the Public International Law & Policy Group working with the International Crisis Group, and then becoming a core element of the Rambouillet Peace Accords and UN Security Council Resolution 1244. The approach was then further refined and developed by a number of expert commissions and think tanks, including the Goldstone Commission, the International Crisis Group, and the Center for Strategic and International Studies, and came to form the basis of the current United Nations doctrine of Standards before Status. Throughout its development and application, the earned sovereignty approach competed for influence with the alternative approach of stability through accommodation and was shaped by the compromises inherent in the foreign policy decision making process. In the end, the debate yielded a more refined approach which appears to present the greatest opportunity for facilitating a viable and lasting settlement of the centuries old dispute over the sovereignty of Kosovo.

OVERVIEW

The history of the territory of Kosovo is marked by near perpetual competition for sovereign control between Kosovar Albanians and Serbs. (5) Great powers, such as Germany and Italy, and now the United Nations, have also played important roles in the allocation of sovereignty over Kosovo. Throughout the history of competition, sovereignty has ebbed and flowed from the Kosovar Albanians to the Serbs and back again. Frequently, the competition for sovereign control is accompanied by mass atrocities and human rights violations. Throughout the 1990s, the competition for sovereign control led to increasingly intolerable human rights abuses by the government of Serbia against the people of Kosovo.

In an effort to break the cycle of retribution, to highlight the need for a comprehensive approach to resolving the conflict, and to fill the diplomatic deficit created by the lack of a coherent response by the European Union, in November 1998 the Public International Law & Policy Group (PILPG) defined and proposed the adoption of the approach of intermediate sovereignty. (6) This approach sought to serve as a basis for structuring the phased reduction of Serbian sovereign control over Kosovo, and for allowing the people of Kosovo to accumulate sovereign authority and functions in a manner protecting the legitimate interests of the Serbian minority in Kosovo and of the international community. (7)

The key elements of the 1998 PILPG approach involved the creation of a system whereby the people of Kosovo, through legitimate political bodies, would be entitled to exercise certain sovereign rights, while simultaneously retaining specified links to the Federal Republic of Yugoslavia (8) (FRY). (9) As a condition for attaining greater sovereign authority...

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