NATO’s unsanctioned intervention in Kosovo was plainly a breach of Article 2.4 of the UN Charter. The question of whether the threat and use of force in this case can be defended legally will provide further considerable substance upon which the long-running debate on whether there is a right of humanitarian intervention will continue. However, for the many who hold that gross violations of human rights make ethical demands upon us which cannot be overridden by prohibitive law, such situations are presented to us as a form of ‘Justice cannot wait; law cannot bend.’ When serious and widespread suffering resulting from government action or omission within sovereign borders is characterised in this way, we are given to understand that there is a moral, and arguably, even a legal imperative driving (and justifying) action in direct contravention of international law.
During the four decades of Communist rule in Czechoslovakia, the state regularly provided developmental and humanitarian assistance to friendly regimes. As with all government functions, this aid was tightly controlled by the Communist Party apparatus and managed according to its political and ideological dictates, with no accountability to common citizens for whom "donations" to aid initiatives were often mandatory.
The advent of democracy in 1989 brought profound changes to this system. Foreign aid (non-trade) was suspended altogether for five years while government ministries were reorganized and the country underwent economic restructuring and privatization. The Czech Republic re-instituted a foreign aid program in 1995 – the first formerly Communist nation in Central Europe to do so – with an annual budget appropriated by an elected parliament set to have reached $20 million in 1999. At the same time, a number of Czech NGOs (i.e. ADRA, Caritas, People in Need Foundation) have also established their own fundraising and operational capacities in this area and provided millions of dollars in direct relief aid to crisis-stricken countries in Eastern Europe, particularly former Yugoslavia, as well as territories of the former Soviet Union. Volunteer programs are flourishing, especially among university students. These developments are indicative of a strong civil society with a sense of global responsibility, and have figured prominently in the Czech Republic’s acceptance into the OSCE and NATO and its pending membership in the European Union.
- The Hill proposal was adopted within the framework of the attempt by the international community to address the issue of Kosova as one of autonomy and to reject any claims for independence. It must be realized that this basic approach obviously determines the flavour of the agreement throughout.
- The agreement exhibits some features of an international agreement (a treaty), but its status is in fact far from clear, and probably left deliberately ambiguous. This ambiguity is dangerous for Kosova, as the implementation of the agreement appears to be envisaged at the level of FRY law, rather than international law.
- The agreement provides for limited legal personality for Kosova and actively denies its claim to statehood. The agreement does not constitute an interim arrangement towards statehood (as opposed to the case of Chechnya), but instead freezes the envisaged subordinate position of Kosova indefinitely.
- Due to a complex and complicated division of powers among several organs, Kosova is reduced to a position of authority that is considerably less developed than was the case under the 1974 constitution. Most importantly, the legal personality of Kosova as an overall entity is reduced to a vanishing point. A claim to self-determination in the future is precluded by the fractionating of authority and its distribution to various layers of competence.
- At a local level, very significant authority for self-governance is attributed to communes or municipalities, subject to certain important safeguards relating to the treatment of local minority populations. In practical terms, this is intended to balance the lack of legal personality and significant authority of Kosova as a whole over its own affairs throughout its territory. However, this practical autonomy at a sub-regional level is interfered with by involving Serbs and possibly others as a national group which is given (a) several layers of independent authority and (b) important veto rights over all aspects of decision-making in Kovova.
- Generally, this agreement is heavily dominated by considerations of achieving a solution that is acceptable to the FRY/Serbia–even to the point of abandoning the international demand that at least the autonomy status of the 1974 constitution must be restored. Such a proposed solution sacrifices the legitimate aspirations of the people of Kosova to the perceived need of appeasing Belgrade. With the conclusion of the initial deal with Milosevic of 12/13 October, the representatives of Kosova will come under even heavier pressure to accept this sacrifice.
- Conclusion: While the Republic of Kosova should not in principle oppose negotiations towards an interim arrangement, such an arrangement must not be concluded along the lines proposed by Ambassador Hill. Even to start negotiations on the basis of this proposal will inevitably yield an unacceptable result which prejudices Kovoa’s position irreparably, for now and in the future.
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