Begegnungen
Schriftenreihe des Europa Institutes Budapest, Band 29:113–120.

TIBOR VÁRADY*

Minority Rights in the Successor States of Former Yugoslavia

Formulae of Solutions in the Light of the Kosovo Crisis

I would like to focus on minority issues in the light and current of the Kosovo events. When in the mid-1970s I tried to launch education in Hungarian language at the University of Novi Sad I had two supporting pillars. One was the Serbian Dean of truly European orientation and the other one was the fact that the same process was already in progress in Albanian in Pristina which served as a basis of reference. Since that time I have often seen models serving somehow as points of reference. I think it will always be this way even if we claim that there are no precedents.

It is also interesting that when Milošević ended the autonomy of Vojvodina in the late 1980s, the actual target was the autonomy of Kosovo. Vojvodina was linked to it, to use NATO terminology, as ‘collateral damage’. The discontinuation of the autonomy of Vojvodina was not so much a target but rather a collateral damage. Now even a lesson can be drawn from the termination of autonomy. The propaganda of Milošević repeated time and again that autonomy had to be terminated because it was leading towards independence. The example of Kosovo, however, shows that it is not autonomy but its termination that may drift one towards independence.

Remaining with the example of Kosovo, international efforts towards a solution were often governed by short-term priorities rather than by a principled or long-term thinking. If the objective is truly the independence of Kosovo, and apparently this is the case, it would have been far more expedient to take Kosovo away from Milošević. Perhaps it seemed to be inconvenient at that time. Today I think it is clear that it would have been simpler because now the Serb leadership is confronted with an almost impossible expectation. They are not only expected to accept a fact, but to declare that they agree to the independence of Kosovo. This is practically impossible. The Hungarian parallel has often been cited. Today Europe expects any Hungarian government to forget about the alteration of borders and to act in the interest of the collective and individual rights of Hungarians living beyond the borders. And this is exactly what is happening. But which Hungarian government would be ready to sign that some parts of the country would be eliminated or separated with their consent? This is impossible politically, humanely and in practice as well. Actually this is exactly what is demanded from the Serb Government that have overthrown Milošević, and from Serbia where the party of the extreme nationalist Šešelj has more than 30% voters. Surely this does not work. I must say that it would be just as difficult to make the Albanians accept that they should give up independence. Now, when they believe in it and have grounds for hope based on encouragement.

Surely an almost impossible task has emerged. Perhaps this is the reason why attempts at solution move along a somewhat forced track. Controlled independence, figuring in the Ahtisaari proposals is not really a solution but the picture of the currently existing situation. Namely that Kosovo is de facto independent. There is no Serbian police in Kosovo, Serbian law is not enforced, the Serbian judiciary have no authority whatsoever in Kosovo. In other words, the basic pillars of the state are unoperational there. If a President of Serbia wishes to pay a visit to the Serbian grammar school of Budapest he can easily do so and would be most welcome. If the same Serbian President tries to visit a Serbian school in Kosovo it would be extremely difficult, despite the fact that in theory Kosovo is part of Serbia. On the other hand, Milošević projected the Kosovo settlement as victory. It is stated in Resolution 1244 of the UN Security Council of 10 June 1999 that Kosovo is part of Serbia. This was so often repeated by Milošević that everyone in Serbia knows about the UN Resolution, even those who do not precisely know what the UN is. Therefore the loss of Kosovo is at stake today in Serbian politics. Meanwhile Kosovo is de facto not part of Serbia anymore.

As far as the principles of the Contact Group are concerned I also agree with those who believe that it has good intentions, but one can rather observe a tendency of explaining things and looking for an alibi instead of a quest for reality. Let us take, for instance, the principle, that Kosovo cannot unite with Albania. If Kosovo is truly an independent state, I do not see any legal obstacle hindering it. What could hinder the union of Kyrgistan and Turkmenistan if both countries wanted it? What could hinder the Benelux states (Belgium, the Netherlands, and Luxembourg) to form a federation if they wish? There is no such international legal principle. Surely, there are political realities, but legally such a position has no validity.

Non-partition has also been mentioned as a principle. In this respect it is truly a rational argument, for as we have seen, partition may lead to a chain reaction. Independence, in its turn, may also have the same result. Also, the principle of non-partition has become a ‘fashion’ one hundred years ago, as one of my American colleagues holds. This principle has led to catastrophic solutions in Africa and in the Middle East, where the setting of borders was not guided by ethnic realities, but rather by a ruler that set straight lines that became country borders. The painful effects of those solutions are felt even today. Here, of course, one remembers that partition not based on ethnicity was the guiding principle of Trianon too. So this has indeed been the dominant principle for one hundred years but this does not mean that it is a good solution. It is difficult to understand why partition is an option excluded right from the outset, when presumably this could have been the point where even a Serbian-Albanian compromise might have been reached.

The Contact Group has yet another important principle, namely whatever solution is born, safeguarding far-reaching minority rights should be ensured for those who would be in minority. And this is already a basis of reference. I would try to avoid the word ‘precedent’, because it has become a mantra (having independence in mind) that Kosovo cannot become a precedent. (This is not fully convincing and it usually suggests a solution that is neither ideal nor principled if someone introduces a proposal that is not supposed to be a precedent. Besides, I do not know how people could be deterred from referring to it in Abhasia or in Kurdistan, in the Basque Country or on Pashtun territory in the border region between Afghanistan and Pakistan.) It is impossible to prohibit political arguments in advance. Therefore a rhetoric denying precedent is not very convincing, but this rhetoric does not extend over the issue of autonomy either. Autonomy, however, is important from the angle of European values; it is important from the angle of Hungarian interests, and very important with regard to the humanity and living conditions of people who live there. In Kosovo it is not only strong national sentiments but also mutual intolerance that characterise the present reality and therefore it even more important to ensure a far-reaching protection of minorities. It is unimaginable without individual and collective rights. I think this is a point where there cannot really be doubts and there are no basic differences of opinion.

Turning back to my actual topic, let me speak about minority rights in the successor states of the former Yugoslavia. In the years prior to the system change, by which I do not mean the last decade in Serbia, hallmarked by the name of Milošević, but rather the 1960s and 1970s, Yugoslavia was undoubtedly the state where the Hungarian minority was able to live under the most favourable circumstances and this was not only true for the Hungarian minority, but for the other minorities as well, if compared to Ceauçescu’s Romania or to the Slovakia of those days, or even to Zakarpattia Oblast. I think this is beyond doubt. Perhaps to some extent it is also due to the fact that Tito was a dictator and did not belong to the majority nation. Tito was a Croat, therefore he could not build his dictatorship on majority nationalism. He could have built it on party ideology, as well as on some kind of balance among nations, the benefits of which could be enjoyed by the minorities too, as far as the given framework allowed them. However, the factor that kept this mechanism alive was primarily the Communist Party. And when not only Yugoslavia but communism also disintegrated, the question newly emerged what principles should be adopted and what instruments could be applied to implement those principles. Law came to the foreground from among the possible instruments but when minorities are involved legal instruments can only be effective if people have some opportunities of self-determination. After the disintegration of Yugoslavia several models were born and this was not illogical. The birth of several models can be partly explained by the fact that problems have emerged in various settings. And here again, the destiny of Hungarian and Albanian minorities is interrelated to some extent. It is interrelated because the two minorities, differing primarily in their language, carry in themselves a specific aspect of minority rights. In the 1970s at the railway station of Novi Sad and Subotica the arrival of trains was announced in Serbian and in Hungarian. This is not the case any more, it is only an objective. I have quoted a relatively weightless example but there are far more serious problems. I took this example to demonstrate that there are minority demands and rights that have little significance for the Serbs in Croatia or the Bosnians in Serbia. In fact within the former Yugoslavia minority destinies and minority demands are typically not determined by linguistic dividing lines. Consequently, different structures have developed. Minority rights and destinies take shape and develop differently when the basis of being different is language. Therefore minority cooperation between Hungarians of Vojvodina and Muslims of the Sandžak can only partially be based on common objectives and arguments. For instance, both communities may claim to have schools or a television of their own, but for the Hungarians these demands primarily arise due to the difference of language, therefore most arguments are also based on language use. This is not the case for the people living in the Sandžak. Cultural autonomy is seen differently by the various minorities. Therefore it is natural that different models develop. I do not have the opportunity now to go into detail about these models, I only wish to refer to some specificities.

In Slovenia the attitude to minorities is based on a distinction of key importance, namely the difference between indigenous and other minorities. The indigenous minorities are the Hungarians and the Italians. These are relatively small minorities. The other minorities are Serbs and Bosnians who settled in during Tito’s time, and there are more minority problems in relation to them than to the numerically more moderate indigenous Hungarians and Italians. This time the Hungarian minority is on the more favourable side, but surely their numbers are very modest in Slovenia.

In Bosnia once again an entirely different image has emerged based on the Dayton constitution worded in Dayton (in the United States). Up to now Dayton was only interesting because the largest number of books on Virgin Mary is kept in the library of Dayton. Now it is also interesting because the constitution of Bosnia and Herzegovina was produced there. Next it was formally signed in Paris. When this constitution was born the primary aim was to terminate a war situation, looking for peace. This was more or less successfully accomplished. The text of the constitution is mostly linked to the name of the American adviser James O’Brian. The drafters were aware that ethnic tensions should somehow be made manageable there. The way it was done shows that they had been perfectly aware of what they had to do but it also indicates that this was done by people who where not really at home within the world of minority rights. Therefore the instruments are rather intensive. For instance Article IV(1) of the Constitution declares that there should be five Serb, five Bosnian and five Croat delegates in the House of Representatives. In other words, ethnic composition is set in advance. This totally contradicts Article II(4) of the Constitution which says that every single person and nationality is equal, and prohibits every kind of discrimination. Article IV(1) practically means that according to the Constitution a Hungarian from Sarajevo, a Jew from Sarajevo, or a Ukrainian from Banja Luka can never become a member of the House of Representatives despite the fact that they are citizens.

This bizarre solution was obviously inspired by the necessity of creating some kind of balance but it could have been achieved by other, more refined and less incongruous instruments as well. For instance, instead of saying that there must be five Serbs in the House of Representatives it could have been said that the Republic of Serbia (where 90% of the population is Serb today) would delegate (or elect) five members of parliament. It would obviously mean that in all probability five Serbs would be sent there yet it would not be constitutionally excluded that an inhabitant of different nationality of Republika Srpska could be elected. Similarly Article V of the Dayton constitution states that there is a Serb, a Muslim (that is Bosniac) and a Croat in the Presidency. And even the ethnic composition of the national bank is specified. It has produced some kind of balance but not by instruments that are considered as ’European’ tools of minority rights.

In Croatia a new ethnic composition emerged after the war. According to the data of the UN HCR 195,703 people left Croatia between July and December 1995. They were almost all Serbs and the majority of them went to Vojvodina. It means that the number of Serbs in Croatia was significantly reduced and it also means that the ethnic composition of Vojvodina has been significantly altered. There is a Hungarian and an Italian minority in Croatia and other minorities too, but naturally the primary minority problem continues to be the situation of the Serbian minority. In Croatia a so-called ’constitutional law’ was passed which ensures minority rights and, what is important, also personal, i.e. cultural autonomy. This cultural autonomy is limited, and the competencies of the national councils are also limited. Nevertheless, the constitutional law can undoubtedly be assessed as a step forward. National councils are organised at local and county (županija) level as well as on the national level. On the national level it is not only the national councils of the different minorities that can be organised but all the minorities can form a common national council, which, however, does not seem to be the best solution. In Croatia minorities have a right for parliamentary representation, and due to this solution there are Hungarian and Serbian MPs in the Parliament, with more Serbs among them reflecting their proportion in the population. The Serbian MPs play an important role behind the current government.

Let me also say a few words about the situation in Serbia. After the fall of Milošević there was a wave of changes following a European orientation and this produced results under the Ðinđić government. In 2002 an Act on Minorities was passed which was published in seven languages including Hungarian. There are a number of provisions of this Act which deserved to be mentioned. One significant achievement is the inclusion of the provisions about national councils. There are other results: at the universities entrance exams in several languages were restored, and personal documents and certificates were to be issued in several languages. I mention it with some bitterness that after the personal documents were not only issued in Serbian but also in Hungarian (in Serbian on the left and in Hungarian on the right side) the Hungarians from Vojvodina who turned with those certificates to the Hungarian authorities were told that they had to get them translated. I also regard it a result that it was the Hungarian National Council that decided on the Hungarian variant of place names and on making them official in Vojvodina, and consequently, the Hungarian place names were indicated. There were places where it provoked resentment, and in other places multilingual plates of place names were pulled down, or scrawled on, but they were restored and multilingualism has grown to be a reality in this respect.

I cannot be silent about the unfortunate decline in the field of minority rights during the recent years and I would try to give an explanation for this trend. The 2002 federal law referring to the national councils acknowledged cultural autonomy which was subsequently also confirmed by a Hungarian–Yugoslav interstate agreement. That agreement emphasised the legitimacy of collective rights. The 2002 law had, however, a shortcoming, because it said very little about the competencies of national councils. This could be explained legally, because the competencies of the national councils extended primarily over education, culture and the area of the press, and those fields were not in Yugoslav but within Serbian competencies. Therefore the federal law could not settle them and it would have been the task of a Serbian law, which was supposed to be elaborated later on. It was understandable but I do not quite see why the relevant Serbian legislation was not enacted.

The issue became really problematic when the validity of the law became questionable after the disintegration of Yugoslavia. The mandate of the national councils and particularly of the Hungarian National Council expired and it could not be re-elected because there was no legal norm on the basis of which it could be done. The legislation on the competencies of national councils has also been delayed for three years. This is a serious legislative omission. I very much hope that the new Serbian government and parliament will solve it, because this is the point where Serbian legislation truly turned in the European direction and they should progress further rather than retract their steps. All the more so because I do not see real conflict of interests there, and I believe that a Hungarian living in Novi Sad will more willingly accept Novi Sad and Serbia as his/her home if there are inscriptions in Hungarian there, if there are Hungarian schools as well, and if there is a Hungarian self-government.

Usually rhetoric formulae are also tabled in the majority–minority dispute. Almost every state where there are minorities says that there is no other country in the world where minorities have more extensive rights. This is a rhetoric formula. The minorities rather say that the sphere of those rights is limited and very narrow. But let us focus on another battle of rhetoric formulae. The majority likes to project minority rights as ‘extraordinary’ rights, as being something more than what the minority actually deserves, and the expression ‘additional right’ fits well into this formula. According to this rhetoric scheme there are general human rights and there are additional rights. Equality before the law is a general human right. The price of shoes cannot be fixed according to the nationality of the customer, and the nationality or religion of the culprit should not be considered when punishments are imposed. Further on, there are rights that are ‘additional rights’ according to the majority rhetoric (or by the rhetoric of some majority actors). Such an ‘additional’ right is if someone can use his/her mother tongue, may attend school in that language, can have newspapers and television in the mother tongue. Surely these rights can also be regarded from a different perspective. From another angle additional rights are also general rights. Actually to speak Hungarian in Serbia is not an ‘additional’ right but precisely the same right that the Serbs have who obviously can speak their own mother tongue, can attend school and read newspapers. We can speak of equality if the Serbs may speak Serbian, the Romanians Romanian and the Hungarians Hungarian. Thus ‘additional right’ is just a rhetoric trick because the yardstick of equality is surely not the language of the majority. We can speak of equality if everyone is allowed to use his/her mother tongue. Collective rights do not fall under the category of a special favour provided for minorities either, because the majority also has collective rights. To have Hungarian schools in Serbia or in Transylvania is a collective right, since after all both Serbs and Romanians have their community rights to education in Serbian and Romanian respectively. Similarly in Hungary Hungarians have the community right to study in Hungarian. Therefore collective rights are not some kind of suspicious minority demands but they are elements of the equality of citizens. Thus this is not a matter of additional rights.

Well, these rhetoric positions were put in a very interesting light on the occasion of the attempted settlement of Kosovo in 1998–99. The talks at Rambouillet resulted in two drafts. One was worded by American, Austrian and Russian diplomats, and there was also a Serbian counter-draft. General human rights and ‘additional rights’ were mentioned in both drafts. The well known rhetoric links ‘additional rights’ to minorities. This, however, raises the question as to which group of people ranks as a minority and who is supposed to get additional rights. That was a problem because it could not be decided in advance who was in a majority position and who was in a minority position in Kosovo. As the majority–minority formula could not be used, the makers of the draft had to step forward from behind the curtain in order to define who are entitled to have ‘additional rights’? Facing this issue the international and the Serbian drafts reached the same conclusion. Both drafts state that there are general human rights that are equally the rights of Albanians, Serbs, Turks, and Croats, etc. There are further additional rights to which the Albanians as well as the Serbs and other ethnic groups of Kosovo are again equally entitled. (For instance, the right that place names should be indicated in the language of various groups and in their script, the right that the various groups should have their own schools in their own language, etc. were all listed under the heading of additional rights.) So, it was revealed that actually everybody has additional rights. The curious situation gave an opportunity for an interesting clarification, a kind of exposure. This is an interesting product of the otherwise unsuccessful Rambouillet experiment.

Finally, let us understand that whatever happens to Kosovo, it is truly important that those who live there should have an opportunity and incentive to stay there. I think this is simply unimaginable without truly high standard individual and collective minority rights. This also applies for rights that are called by some ‘additional rights’.

* Professor of Central European University