An interview: Dr. Milan Šahovic

WHEN LAWYERS LISTEN TO POLITICIANS

By Seška Stanojlovic

From the angle of international law Kosovo independence declaration has to be discussed in a much larger context. And yet, it is the most important issue for Serbia, especially when it comes to its political abuse. This is one of the reasons why we have talked with one of our most prominent experts in international law, Dr. Milan Šahovic, who used to be a regular contributor to the Helsinki Charter.

"I have not published anything in Helsinška Povelja in quite sometime, so now, when you called I had to (look into my writings to) check and remind myself what I used to say and write about the question of Kosovo," says Dr. Šahovic adding, "I established that everything started back in late 1970s in the Serbian Presidency's Council for Foreign Affairs at the time of ex-Yugoslavia, when this question was being perceived in the context of relations with Albania. After 1995, following the collapse of our Federation, in forums of weekly Vreme, at round tables organized by the Helsinki Committee, at the Forum for International Relations, through articles published in Helsinška Povelja, etc. I have followed all the phases of the search for a solution for this issue from the angle of international law its political implementation.. I can tell you straight away that my approach and my basic conclusions and recommendations concerning our country's understanding of international law and its treatment of the Kosovo issue, have not changed at all. I mean, I wondered whether there is any need for us to talk. I appreciate your asking me for an interview, but I don't want people to say "he is just repeating himself." However, there have been hints since the agreement on negotiations following on the UN General Assembly Resolution on the advisory opinion of International Court of Justice and in the ensuing discussions on how to treat the upcoming elections in Kosovo that indicate a possibility of some changes. But speaking of Serbia's political goal, tactics or strategy, everything is still blurred. You know, at a course held in Spain in 1999, after NATO intervention and the adoption of the Resolution 1244 by the UN Security Council, I said that I was afraid that our problem with Kosovo would turn into another Palestinian question because of its duration. And yet, now it looks to me more and more like the Irish issue. I remember we talked about that at the round table discussion "Serb-Albanian Dialogue" organized by the Helsinki Committee.. Of course, the international law still offers every possibility for finding a solution but it needs to be interpreted and applied "in good will" and with full respect for its rules and principles. The international law is not, or it should not be used as a political instrument, but as the basis of the agreement on international issues."

Helsinška Povelja: Kosovo independence declaration (2008) practically put an end to the process of dissolution of Yugoslavia. Do you believe that with this act the process of the territorial completion of seven newly emerged state ended as well, or the regional constellation is still fragile and subject to new challenges (BiH)?

Milan Šahovic: You know, the answer to this question seems simple but only when it comes to the dissolution of Yugoslavia. At my personal regret, it dissolved in 1991, because of Miloševic's policy and the unwillingness of the Serb communist and civilian elites to accept the creation of a democratic federation or confederation in accordance with general trends in the rest of the world. Petty, nationalistic policy destroyed Serbia. The declaration of independence of Kosovo (2008), was only a finishing touch that confirmed that even after 5 October we have remained in the back seat of integration tendencies in Europe. As for the challenges and fragility of regional constellation, all I can say is that this is all about illusions and maybe even ambitions that can no possibly be attained. Not looking over the borders but building one's own society in cooperation with others and within the European Union is a recipe that any general practitioner would prescribe straight away.

Povelja: In your opinion, which argument "protects" the most Kosovo's statehood? I am asking because that's where the biggest differences are: from claims that Kosovo is a "false state", to those saying that its right to statehood derives from the ex-Yugoslavia's federated arrangement (Constitution of 1974). In your works you have dealt with constitution of new states, conflict of the rights to protect territorial integrity, people's right to self-determination, and some other aspects of emerging states?

Sahovic: The differences you are referring to are only the consequence, not of the political but petty-political, ignorant attempts to hide under a legal costume one's unwillingness to implement the imperative norm of people's right to self-determination that after the World War II and the UN Charter represents one of the basic rules of the modern international law. No one could deny that right to the Albanian population in Kosovo. Besides, SFRY itself was founded on that right. It was not by chance only that De Gaulle in 1959 publicly acknowledged the right of the Algerian people to self-determination. Further, the UN General Assembly by unanimously adopting the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the UN Charter in 1970 confirmed the obligation of all countries to, together with the six other principles, implement people's right to self-determination as a collective human right. Moreover, the Declaration lays down that this rights shall be implemented by peaceful means. And that's what we failed to do over here. After ultra vires NATO intervention, subsequently legalized by the UN Security Council and the Resolution 1244, we failed to use constructively the presence of the UN administration and KFOR troops. The relations with the UN administration that have been developed smoothly at the beginning were not put to good use. That was the case at the time of Marti Ahtisaari, though it can be said that international factors - those in the field and those acting as intermediaries - were neither more flexible about Serbia, which acted mostly on its own and to its own detrminent. The declaration of independence of Kosovo is based on modern international law on the establishment of states with international help and rests, with the help from UN and EU under Security Council's auspices, on prolonged validity of Resolution 1244. Serbia's insistence on territorial integrity and sovereignty will be less and less valid, like it or not. On the one hand, because the state of affairs negates them and, on the other, because we can see for the first time in the preparations for the upcoming elections in Kosovo - we see it in our media - that even the Serbs who live in Kosovo are accepting the realities and starting to act independently from the still confused Belgrade.

Povelja: How would do you assess the two-year campaign of the Serbian Ministry of Foreign Affairs for blocking the recognition of Kosovo by UN member-states?

Sahovic: I think that was a useless waste of money. First and foremost, this is what the ambassadors should have done in the countries in which they are accredited, they are the ones who should have discussed the issue with their colleagues coming from the countries that have not yet recognized Kosovo. Besides, before admission of any country in the UN General Assembly one should make sure that all the permanent members of the Security Council are in favor. According to the UN Charter, a country is admitted by the General Assembly at the recommendation of the Security Council.

Povelja: In the context of international law and diplomacy, how do you evaluate the initiative for the advisory opinion of the International Court of Justice on the legality of Kosovo's independence?

Sahovic: I will briefly answer your question. As far as I am concerned, I was not in need of any ruling or advisory opinion of my colleagues from the ICJ, who are all prominent international lawyers. My answer to your question is evident in my stands on other issues we are discussing. As far as our country is concerned, I was consulted and gave my vote to the ICJ advisory opinion only because I was terrified by other options they were after such as suing the countries that have recognized Kosovo. After all, the advisory opinion was the only legal option in accordance with the Charter and the Court Statute, and the Minister for Foreign Affairs had promised to respect the opinion whatever it might be. It bothered me that they kept boasting in public about winning the case even though it was only about ict" even though it is only question of a non-binding court opinion. Finally, I was very interested in the opinions of other countries, because our question called for answers to one of the extremely important issues of the international law in general.

Povelja: What is your attitude towards the advisory opinion of the ICJ?

Sahovic: I will tell you straight away that it is not negative. I think the court did us a favor. Had it gone into the meritum that is linked to the implementation of people's right to self-determination and general rules on states' emergence and the effects of their recognition, it would have been a great shame for both our country and our legal school. This school failed the test when it came to ex-Yugoslavia's disintegration, all the developments in and about Serbia and, finally, the ongoing developments in and about Kosovo. With few exceptions only, we don't follow the science or the practice that are being developed internationally, and that worries me. That's why we invoke the international law be it necessary or not. The ICJ delivered its opinion without dealing with a solution, as it was not asked to do it in the first place. Apparently, we have expected it to provide a solution and hence such such disappointment and anger. I can only hope that we would no longer be turning to courts as some litigant country. That's what happens when lawyers listen to politicians.

Povelja: In your opinion, who had crucially influenced major decisions by the country's leadership when it came to Kosovo: specifically, to first ask for the advisory opinion of the ICJ and especially, when it was already delivered, to send a draft resolution to the UN only to withdraw it at the eleventh hour in favor of a resolution agreed on with EU? Should someone (foreign minister, legal experts, someone else.) be held responsible for that?

Sahovic: Generally, I've practically answered the question of responsibility. Specifically, I wouldn't know. After all I belong to the strata embodied in Vice-Premier Krkobabic /leader of Pensioners' Party/ and as such am supposed to be in the dark about the process of decision-making. I do think we are the ones to submit a draft resolution to the UN General Assembly. In it, we should have recognized the endeavor of ICJ and thanked it for it. Had the Legal Committee of UN been our address the procedure would have been different, the discussion would have been more detailed and generated more opinions. Since the draft was debated in plenum, it should have been formulated differently but not from Serbia's angle only as was the case in the first draft. How come the representatives of the EU were not consulted about our initial draft resolution, I don't know. However, an agreement has been reached, and a joint resolution adopted, which represents a significant success. Why blaming someone specifically when the whole policy was wrong?

Povelja: Do you think that by accepting the joint resolution with the EU the state leadership has made a U-turn in its policy for Kosovo and the realities over there? Specifically, did the official and unofficial (but most influential) Belgrade give up the plan for partition of Kosovo?

Sahovic: I am not interested in the influential official or unofficial Belgrade, but in what the international community and the government of Kosovo think. But what's the point of discussing this now? I remember the determination with which Boutros Ghali said partition was out of question when I brought up the idea at the London Conference in 1992. There are no indications that anything has changed since then. We are the masters of raising the issues that are unacceptable to the international community. Besides, I wonder what we would get from a partition. I think that our regional interests should be vested in multietnicity now that the prospect are that all Balkan countries will be included in the work of the EU. We should free ourselves from the trifles that cannot influence our future and leave them to the concern of those "very influential" but obsolete circles in Belgrade.. As far as official circles go, I just remembered the documentation for the ICJ and its advisory opinion, which, in the historical section about the establishment of the Federal Yugoslavia, quotes (and literarily translates into English) that "communist guerilla leader Tito" appropriated power in 1945, even though it is well known that Marshal Tito was at the time the prime minister in the still royal government under a mandate following on the agreement with the government in exile and the major allied powers. And that was written by a historian, acting as a "lawyer," an ambassador and a head of Serbia's legal team before the ICJ. And where are the lawyers? They are listening, making their careers and keeping quiet. A number of international lawyers, my colleagues, maybe even agree with this policy.

Povelja: Will "giving up" Kosovo endanger again the territorial integrity of BiH? Further, would you say that the advisory opinion opens the door to a parallel between Kosovo and Republika Srpska?

Sahovic: In the game of politics everything is possible. However, from a legal aspect, there is no parallel between Republika Srpska and Kosovo. Republika Srpska is a constitutive part of BiH, a state formed under an international agreement, accepted by the leadership of the Serb population that is in the majority over there. Serbia signed that agreement, the Dayton Accords, which provides close ties with Republika Srpska but requires it to cooperate with BiH as a whole. Furthermore, Serbia is one of the guarantors of that agreement which aims at strengthening the cohesion of BiH as a union of three people. Republika Srpska is a part of a country that has its place in the region, Europe, as well as the UN. Its reputation depends on how much it contributes to the development of BiH as a whole. On the other hand, speaking of Serbia, it is clear that from the standpoint of the international law it needs to strengthen its political reputation now that it knocks at the door of the EU through direct contacts and developed cooperation with all the entities of BiH.

Povelja: As of lately the theses about the reasons for the collapse of Yugoslavia that used to dominate the public discourse in early 1990s are being revived: the theses about secessionism of northwestern republics, a global anti-Serb conspiracy, the role played by Germany and Vatican, as well as the relativization of the crimes and the responsibility for them. What is behind such "reinterpretation" of the 1990s?

Sahovic: I am not familiar with today's theses about these issues. At the time when they were the actual agenda I was writing and speaking about them. All my answers can be found in the book you published within "Testimonies" edition under the title "The Chronicle of International Isolation." Let the historians deal with our attitudes at those times. It is an old book, published before the NATO bombing and the fall of Miloševic. I do not believe it was attractive to a larger readership but it does deserve a new edition. It can be of use to younger generations.

Povelja: At the end, maybe an afterthought of yours: what was it that Serbia lost by declining the solutions at the table at the Hague Conference in 1991, the solutions unanimously turned down by the then government (Slobodan Miloševic) and the parliamentary opposition alike?

Sahovic: I suppose you refer to Lord Carrington's proposals. I think Serbia lost everything then. As I remember, Momir Bulatovic accepted them on behalf of Montenegro. Then, scolded by Miloševic he was so frightened that he withdrew his approval. He was very afraid of Miloševic! I witnessed that at the Conference in London in 1992. You've published a book titled "Yugoslavia's Last Chance: 1991" for which Sonja Biserko wrote the preface and I the introduction. The annex of the book guotes the stands of major politicians in power and in opposition. From today's point of view - that is a very instructive reading.