Anti-Memorandum as a Discursive Corpus and International Law

By Isuf B. Bajrami

Narrative, Sovereignty and International Law:

A Critical Analysis of Memoranda on Kosovo

A critical analysis of narrative legitimacy in the Serbia–Kosovo case

ABSTRACT

This article analyzes political and intellectual memoranda in Serbia, beginning with the Memorandum of the Serbian Academy of Sciences and Arts (1986), as well as subsequent discourses on Kosovo, through an interdisciplinary approach of international law and Critical Discourse Analysis.

The study argues that these documents do not possess legal status in international law, but function as a "political discursive corpus" influencing the construction of narratives concerning sovereignty and state identity.¹ Drawing upon the Charter of the United Nations, Resolution 1244, and the Advisory Opinion of the International Court of Justice (2010), the article analyzes the tension between political narrative and international legal norm.

INTRODUCTION

The Serbia–Kosovo case represents a conflict in which international jurisdiction and political narratives coexist in continuous tension. In the literature of international relations, this situation is described as a division between "legal reality" and "discursive legitimacy."²

Political memoranda, particularly the SANU Memorandum (1986), are not legal documents, but have functioned as interpretative frameworks of history and sovereignty.³

METHODOLOGY

The study employs:

Critical Discourse Analysis (CDA)?

doctrinal legal analysis

comparative method of political and legal documents

THE LEGAL NATURE OF MEMORANDA

According to Article 38 of the Statute of the International Court of Justice, the sources of international law are:

treaties

international customs

general principles of law?

Political memoranda are not included in this list and possess no binding legal effect.?

THE SANU MEMORANDUM (1986)

The SANU Memorandum represents a political text articulating the perception of Serbia's crisis in Yugoslavia and the position of Kosovo as a state issue.?

Historical studies consider this document as one of the factors contributing to the rise of Serbian nationalism in the late 1980s.?

THE LEGAL STATUS OF KOSOVO

The legal evolution includes:

United Nations Security Council Resolution 1244 (1999)

international administration through UNMIK

the Declaration of Independence (2008)

the ICJ Advisory Opinion (2010)

The ICJ concluded that the declaration of independence does not violate international law.?

THE TENSION BETWEEN NARRATIVE AND LAW

In theories of nationalism, states and nations are not natural entities, but historical and social constructs.¹?

This fact explains why there exists a discrepancy between:

the narrative of historical sovereignty

and the international legal order

THE POLITICAL FUNCTION OF MEMORANDA

Memoranda serve as:

instruments of political articulation

means of identity mobilization

frameworks of historical interpretation

However, they do not possess:

legal status

binding international effect

DISCUSSION: THE COLONIALITY OF MEMORY

The concept of the "coloniality of memory" refers to the domination of one historical narrative over others in the production of political truth.¹¹

In the Serbia–Kosovo case, this manifests itself through:

the monopolization of historical interpretation

the linkage of identity with territory

the politicization of collective memory

COUNTER-ARGUMENTS

Argument: international law is political

? Although influenced by politics, it remains an institutional normative system.

Argument: history determines sovereignty

? Modern international law separates history from legal status.

Argument: the Kosovo case is unique

? The ICJ treats it as "sui generis," yet within the existing international legal order.¹²

CONCLUSION

The study concludes that:

memoranda are discursive structures, not legal sources

the Kosovo–Serbia conflict is primarily narrative and political

international law remains the principal normative framework

history does not produce legal sovereignty in the modern international system.

Footnotes:

1.Stephen D. Krasner – Sovereignty and Political Legitimacy

Stephen Krasner argues that sovereignty in international practice often functions as "organized hypocrisy," whereby states declare principles that they do not always apply consistently. He distinguishes four types of sovereignty (legal, Westphalian, interdependence, and domestic sovereignty), demonstrating that the concept is not absolute, but fragmented in practice.

Reference:

Krasner, Stephen D. Sovereignty: Organized Hypocrisy. Princeton University Press, 1999.

2.Alexander Wendt – The Social Construction of States

Wendt argues that states do not possess naturally given interests, but construct them through social and identity interaction. This concept is essential for understanding why political narratives may exercise real influence without possessing legal status.

Reference:

Wendt, Alexander. Social Theory of International Politics. Cambridge University Press, 1999.

3.The SANU Memorandum (1986) – Political Text, Not Legal

The Memorandum of the Serbian Academy of Sciences and Arts is a document prepared by a group of Serbian intellectuals in 1986, articulating perceptions concerning the political and economic crisis of Yugoslavia. It is not a state document and has never been adopted as a legal or constitutional act.

Nevertheless, literature considers it one of the texts contributing to the rise of nationalist discourse in Serbia during the late 1980s.

Reference:

SANU. Memorandum of the Serbian Academy of Sciences and Arts. Belgrade, 1986.

4.Analysis of Language and Power (Critical Discourse Analysis)

Norman Fairclough developed CDA as a method for analyzing the ways in which language produces and reproduces social power. According to him, political texts are not neutral, but structure the ways societies understand reality.

Reference:

Fairclough, Norman. Language and Power. Longman, 1989.

5.Sources of International Law (ICJ Statute, Article 38)

Article 38 of the Statute of the International Court of Justice defines the principal sources of international law: treaties, international customs, and general legal principles. Judicial decisions and doctrine are subsidiary sources.

This means that political documents (such as academic memoranda) do not possess binding legal status.

Reference:

Statute of the International Court of Justice, Article 38 (1945).

6.Standard Literature of International Law

Malcolm N. Shaw emphasizes that international law is a normative system based on state consensus and not on intellectual or political documents. He also analyzes the role of state practice as a key element in the creation of legal norms.

Reference:

Shaw, Malcolm N. International Law. Cambridge University Press, 2017.

7.The Kosovo Case – Historical-Legal Context

Kosovo has undergone a distinct legal process:

United Nations Security Council Resolution 1244 (1999) established international administration

UNMIK administered the territory during the transitional period

Declaration of Independence (2008)

ICJ Advisory Opinion (2010), which concluded that the declaration does not violate international law

The ICJ did not rule on statehood, but on the legality of the act of declaration itself.

Reference:

International Court of Justice. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010.

8.Interpretation of Modern Nationalism

Benedict Anderson argues that nations are "imagined communities," created through language, media, and historical narratives. This shifts analysis away from biology or pure history toward social construction.

Reference:

Anderson, Benedict. Imagined Communities. Verso, 1983.

9.The Role of Narrative in Post-Yugoslav Conflicts

Tim Judah analyzes that conflicts in the Balkans cannot be understood solely through legal factors, but also through historical and ethnic narratives politicized during the dissolution of Yugoslavia.

Reference:

Judah, Tim. The Serbs: History, Myth and the Destruction of Yugoslavia. Yale University Press, 2000.

10.The Decoloniality of Knowledge

Walter Mignolo argues that the modern system of knowledge is constructed upon epistemic hierarchies privileging certain historical narratives over others. This is important for the analysis of discourses concerning territory and sovereignty.

Reference:

Mignolo, Walter D. The Darker Side of Western Modernity. Duke University Press, 2011.

11.The Concept of "Sui Generis" in International Law

Martin Dixon explains that the term "sui generis" is used for cases that do not fully fit within existing legal categories, but this does not place them outside the system of international law.

Reference:

Dixon, Martin. Textbook on International Law. Oxford University Press, 2013.

12.Resolution 1244 and the Legal Status of Kosovo

Resolution 1244 (1999) established the international framework for the administration of Kosovo and affirmed the role of the United Nations in the stabilization process, without permanently determining the final status.

Reference:

United Nations Security Council Resolution 1244 (1999).

13.UNMIK and International Administration

UNMIK was established as a civilian administrative mission to guarantee stability, temporary governance, and institutional development in Kosovo after 1999.

Reference:

United Nations Mission in Kosovo (UNMIK), Mandate Documentation, 1999.

METHODOLOGICAL CONCLUSION OF THE FOOTNOTES

This critical apparatus demonstrates three fundamental points:

-Memoranda are not legal sources (ICJ + ICJ Statute)

-Sovereignty is a constructed and fragmented concept (Krasner, Wendt)

-Kosovo is a legally consolidated case within the framework of the UN and the ICJ

-Narrative is not equivalent to legal norm.

The Land of Leka, 21.05.2026