The Consociational System of Democracy in Kosovo: Questioning Ethnic Minorities' Special Status in Kosovo's Constitutional Regime

Abstract

This article examines the constitutional position of ethnic minorities in Kosovo, the individual features, and the key protection mechanisms applied therein. At the outset, the article provides a general introduction to the topic, illustrating the character of Kosovo's state model. Subsequently, it builds upon the view that Kosovo was shaped under an international supervision, which aimed to establish a state freed from mono-ethnicity, which is regarded as both multi-ethnic and a state of citizens. The article proceeds to explain the institutional mechanisms established with the objective to protect and uphold the ethnic minorities’ position at both central and local levels. Furthermore, it discusses the affirmative human rights law standards granted to ethnic minorities—both at personal and collective levels. The article concludes by suggesting that the constitution of Kosovo provides for a broad degree of self-rule to ethnic minorities, which, in turn, provides them with the capacity to enjoy a rather constitutive position as regards the essential components of the polity.

Keywords:

• Kosovo
• consociational democracy
• Ahtisaari settlement proposal
• ethnic minorities
• Constitutional law

Notes

¹Ahtisaari plan is a short reference for the “Comprehensive Proposal for the Kosovo Status Settlement of 26 March 2007” proposed by the United Nations Office of Special Envoy for Kosovo, U.N. Doc. S/2007/168/Add. 1, 26 March 2007.

²The UN Secretary-General appointed Martti Ahtisaari as his Special Envoy to lead the future status negotiations process, and Mr. Albert Rohan as his deputy. See Letter from the President of the Security Council addressed to the Secretary-General (10 November 2005), UN Doc. S/2005/709 and Letter from the Secretary-General addressed to the President of the Security Council (10 November 2005), UN Doc. S/2005/708.

³See, for example: Reports of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, S/2006/361, S/2006/707 and S/2006/906.

⁴The Declaration of Independence of Kosovo, February 17, 2008, is available at: http://www.kuvendikosoves.org/common/docs/Dek_Pav_e.pdf.

⁵See the Decree of the Kosovo's President on the “Appointment of the Kosovan Constitutional Commission,” 19 February 2008 at http://www.kosovoconstitution.info/repository/docs/VENDIMI%20I%20PRESIDENTIT%20per%20KKK.pdf accessed March 30, 2010.

⁶Press release of the Constitutional Commission of Kosovo with regard to Peter Faith's decision “On the certification of the Kosovan Constitution,” April 2, 2008. Accessed at (March 25, 2010): http://www.kushtetutakosoves.info/?cid=1,203,1316 See also: “Second meeting of the International Steering Group (ISG) for Kosovo,” Press Statement, April 17, 2008, para. 4, Vienna.

⁷It is worth noting that the European Commission has argued that the Constitution of Kosovo is “a Constitution of a high European standard.” See: European Commission. (2008). Commission Staff Working Document: Kosovo under UNSCR1244/99 2008 Progress Report., SEC (2008) 2697. Brussels.

⁸Kosovo Constitution 2008, Article 1, para. 2.

⁹Kosovo Constitution 2008, Article 3, para. 1.

¹⁰See the Swedish Statement of Recognition of Kosovo's Independence in “Sweden Recognizes the Republic of Kosovo” Swedish Ministry of Foreign Affairs, press release March 4, 2008, http//:www.sweden.gov.se/sb/d/10358/a99714 accessed July 20, 2010.

¹¹It is worth noting, as Kupchan points out, that Kosovo is made of approximately 90 percent Albanians, with Serbians being the largest ethnic group. See: Kupchan, A. C. (2005). Independence for Kosovo: Yielding Balkan reality. Foreign Affairs, 82(6), 14–20.

¹²See: European Commission for Democracy Through Law (Venice Commission) - Working Party on the Protection of Minorities. (1994). Explanatory report on the proposal for a European Convention for the Protection of Minorities. Protection of Minorities. Science and Technique of Democracy, 9, CDL-STD. Strasburg.

¹³Constitution of the Republic of Kosovo, 2008, Art. 64, para. 2.

¹⁴Constitution of the Republic of Kosovo, 2008, Art 67. para. 4.

¹⁵Constitution of the Republic of Kosovo, 2008, Art 144. para. 1.

¹⁶Constitution of the Republic of Kosovo, 2008, Art 81.

¹⁷Constitution of the Republic of Kosovo, 2008, Art. 96, para. 3.

¹⁸Constitution of the Republic of Kosovo, 2008, Art. 144.

¹⁹Constitution of the Republic of Kosovo, 2008, Art. 103 paras. 1, 2 and 3.

²⁰Constitution of the Republic of Kosovo, 2008, Art. 103, para. 2.

²¹Constitution of the Republic of Kosovo, 2008, Art. 103, para. 3.

²²Constitution of the Republic of Kosovo, 2008, Art. 110.

²³Constitution of the Republic of Kosovo, 2008, Art. 101, para. 1.

²⁴Constitution of the Republic of Kosovo, 2008, Art. 61.

²⁵Report on the Status of Public Administration in Kosovo (2007), prepared by Group of Experts for Public Administration Reform. Ministry for Civil Services, February 2007.

²⁶Law on the Civil Service of the Republic of Kosovo, No. 03/L-149, Art. 11, para. 3.

²⁷Law on the Civil Service of the Republic of Kosovo, No. 03/L-149 Art. 11, para. 3.

²⁸OSCE High Commissioner on National Minorities. (1999). Lund recommendations on the effective participation of national minorities in public life. September, available at: http://www.osce.org/documents/hcnm/1999/09/2929_en.pdf accessed July 27, 2010, p. 24.

²⁹Constitution of the Republic of Kosovo, Art. 60 para. 1, and Law on the Protection and Promotion of the Rights of Communities and their Members, No. 03/L-047, Art. 12, para. 1, point b.

³⁰For example, the Consultative Council for Communities continuously reviews the implementation of the laws related to the rights of ethnic communities, such as those related to education, language culture etc., and mandates the competent institutions to initiate assessments aimed at determining the state of affairs. For more see: http://www.president-ksgov.net/?page=1,6,1897.

³¹Comprehensive Proposal for the Kosovo Status Settlement of 26 March 2007, proposed by the United Nations Office of Special Envoy for Kosovo, U.N. Doc. S/2007/168/Add. 1, 26 March 2007, Art 4(3)2.

³²Constitution of the Republic of Kosovo, Art. 78, para. 1.

³³See the Decision of the Government of Kosovo, No. 06/34, dated September 3, 2008.

³⁴See also the official website of the Office for Community Affairs, at: http://www.kryeministri-ks.net/zck/?page=2,5.

³⁵Comprehensive Proposal for the Kosovo Status Settlement of 26 March 2007 proposed by the United Nations Office of Special Envoy for Kosovo, U.N. Doc. S/2007/168/Add. 1, 26 March 2007, Executive Summary, Section on Decentralization, available at: http://www.unosek.org/docref/020707%20Decentralization-F.doc.

³⁶See: Comprehensive Proposal for the Kosovo Status Settlement of 26 March 2007 proposed by the United Nations Office of Special Envoy for Kosovo, U.N. Doc. S/2007/168/Add. 1, 26 March 2007, Art. 4.1.1. See also: Law on the Local Self-Government, No. 03/L-040, Art. 21, para. 1.

³⁷See: Comprehensive Proposal for the Kosovo Status Settlement of 26 March 2007 proposed by the United Nations Office of Special Envoy for Kosovo, U.N. Doc. S/2007/168/Add. 1, 26 March 2007, Art. 4.1.2; See also: Law on the Local Self-Government, No. 03/L-040, Art. 20.

³⁸See: Comprehensive Proposal for the Kosovo Status Settlement of 26 March 2007 proposed by the United Nations Office of Special Envoy for Kosovo, U.N. Doc. S/2007/168/Add. 1, 26 March 2007, Art. 4.1.3 a. See also: Law on the Local Self-Government, No. 03/L-040, Art. 22, para. 1.

³⁹See: Comprehensive Proposal for the Kosovo Status Settlement of 26 March 2007 proposed by the United Nations Office of Special Envoy for Kosovo, U.N. Doc. S/2007/168/Add. 1, 26 March 2007, Art. 10.

⁴⁰See: Comprehensive Proposal for the Kosovo Status Settlement of 26 March 2007 proposed by the United Nations Office of Special Envoy for Kosovo, U.N. Doc. S/2007/168/Add. 1, 26 March 2007, Art. 11.

⁴¹Constitution of the Republic of Kosovo, 2008, Art. 62, para. 1, and Law on the Local Self-Government, No. 03/L-040, Art. 61, para. 1, and Law on the Local Self-Government, No. 03/L-040, Art. 55, para. 1.

⁴²The Constitution of the Republic of Kosovo, 2008, Art. 62, para. 4. For example, this competence has been utilized by the Deputy Chairperson of the Municipal Assembly of the Prizren. See Constitutional Court of Kosovo, Case No. KO 01/09, Cemailj Kurtisi and The Municipal Assembly of Prizren, available at: http://www.gjk-ks.org/repository/docs/ko_01_09_Ven_ang.pdf.

⁴³For example see: Law on the Protection and Promotion of the Rights of Communities and their Members, No. 03/L-047; Law on Education in the Municipalities of the Republic of Kosovo No. 03/L-068; Law on the Higher Education in Kosovo No. 2002/3; Law on Primary and Secondary Education in Kosovo No. 2002/2; Law on the Use Languages No. 02/L-37; and, Law on Local Self Government No. 03/L-040.

⁴⁴It should be noted that Kosovo has committed itself to apply the Agreement between the United Nations Interim Administration Mission in Kosovo (UNMIK) and the Council of Europe on technical arrangements related to the Framework Convention for the Protection of National Minorities, Appendix 2, Item 2.1b, adopted at the 890th meeting – June 30, 2004. As by this Agreement Kosovo shall submit reports on the Advisory Committee on the Framework Convention for the Protection of the National Minorities and would undertake the necessary measures to fulfill the recommendation addressed to it by the latter.

⁴⁵Constitution of the Republic of Kosovo, 2008, Art. 57, para. 1.

⁴⁶In both cases, the Advisory Committee has addressed several recommendations. However, none of the recommendation were related to deficiency in terms of a legal framework or constitutional provisions. For more see the latest opinion and resolutions of the CeO: Council of Europe. (2010). Advisory Committee on the Framework Convention for the Protection of National Minorities, Second Opinion on Kosovo adopted on November 5, 2009. No. ACFC/OP/II(2009)004. Strasbourg, May 31, 2010, and Council of Europe. (2011). Committee of Ministers. Resolution on the implementation of the Framework Convention for the Protection of National Minorities in Kosovo. No. CM/ResCMN(2011)14, July 6, 2011.

⁴⁷Constitution of the Republic of Kosovo, 2008, Art. 58, para. 1.

⁴⁸It must be noted that cultural values define the “boundary at which assimilation must stop if meaningful and stable multiculturalism is the desired outcome.” See Smolicz J. J. (1984). Is the Monolingual Nation-State Out-of-Date? A Comparative Study of Language Policies in Australia and the Philippines. Comparative Education. Vol. 20, No. 2; p. 272.

⁴⁹Constitution of the Republic of Kosovo, 2008, Art. 58, para. 6.

⁵⁰Constitutional Court of Kosovo, Case No. KO 01/09, Cemailj Kurtisi and The Municipal Assembly of Prizren, available at: http://www.gjk-ks.org/repository/docs/ko_01_09_Ven_ang.pdf.

⁵¹Constitutional Court of Kosovo, Case No. KO 01/09, Cemailj Kurtisi and The Municipal Assembly of Prizren, available at: http://www.gjk-ks.org/repository/docs/ko_01_09_Ven_ang.pdf.

⁵²Constitution of the Republic of Kosovo, 2008, Art. 5, para. 1. It should be noted that, according to Schilling, traditionally “the status of official languages is three-fold; they are the languages the citizens may use in their communications with public authorities and vice versa, they are the languages accepted in parliamentary debates and they are the languages in which legal texts are published, the different language versions generally being equally authentic.” See Schilling, T. (2008). Language Rights In The European Union. German Law Journal. Vol. 09, No. 10: p. 1219.

⁵³Constitution of the Republic of Kosovo, 2008, Art. 5, para. 2, and Law No. 03/L-047 on the Protection and Promotion of the Rights of Communities and their members in Kosovo, Art. 4, para. 1.

⁵⁴Law on the Use Languages, No. 02/L-37, Art. 2, para. 3.

⁵⁵Law on the Use Languages, No. 02/L-37, Art. 2, para. 4.

⁵⁶Constitution of the Republic of Kosovo, Art. 59, para. 1.

⁵⁷Constitution of the Republic of Kosovo, Art. 59, para. 5.

⁵⁸Constitution of the Republic of Kosovo, Art. 59, para. 4.

⁵⁹Constitution of the Republic of Kosovo, Art. 59, para. 8.

⁶⁰Constitution of the Republic of Kosovo, Art. 59, para. 9.

⁶¹Constitution of the Republic of Kosovo, Art. 59, para. 11. According to the OSCE report the protection of linguistic rights “… is based on the two pillars of protection for national minorities found in the international instruments above: the right to non-discriminatory treatment in the enjoyment of all human rights; and the right to the maintenance and development of identity through the freedom to practice or use those special and unique aspects of their minority life - typically culture, religion, and language.” See OSCE - High Commissioner on National Minorities. (1999). Report on the Linguistic Rights of Persons Belonging to National Minorities in the OSCE Area. The Hague: OSCE (Organization for Security and Co-operation in Europe), p. 8.

⁶²Human Rights Council. (2009). Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir: Addendum, Mission to the Republic of Serbia, including visit to Kosovo. A/HRC/13/40/Add.3, December 28, 2009; and, Committee on Economic, Social and Cultural Rights. (2008). Concluding Observations of the Committee on Economic, Social and Cultural Rights. E/C.12/UNK/CO/1, December 1, 2008.

⁶³See for more: Knaus, V. and Widmann, P. (2010). Integration Subject to Conditions - A report on the situation of Kosovan Roma, Ashkali and Egyptian children in Germany and after their repatriation to Kosovo. UNICEF Kosovo and the German Committee for UNICEF, Prishtina-Kosovo; Sydow, Von, Björn (2010). The situation in Kosovo and the role of the Council of Europe. Doc. 12281. Council of Europe, Parliamentary Assembly (Political Affairs Committee), 7 June 2010; Council of Europe - Commissioner for Human Rights. (2009). Special Mission to Kosovo. CommDH(2009)23. Strasbourg, July 2, 2009; and, European Commission. (2010). Commission Staff Working Document: Kosovo 2010 Progress Report. SEC(2010)1329, Brussels.

⁶⁴See: Government of Kosovo. (2007). Strategy and Action Plan for integration of Roma, Ashlaki and Egiptian Communities in Education 2007–2017, available at: http://www.kryeministri-ks.net/zck/repository/docs/Strategy_for_Integration_of_Roma,_Ashkali_and_Egyptian_Communities_in_Kosovo_-_Education_Component_%282007_-_2017%29.pdf. Government of Kosovo. (2009). Plan on Children's Rights in the Republic of Kosovo 2009–2013, available at: http://www.kryeministri-ks.net/zck/repository/docs/Strategy_and_National_Action_Plan_on_Childrens_Rights_2009-2013.pdf; Government of Kosovo. (2009). Strategy and Action Plan on Human Rights of Republic of Kosovo 2009–2011, available at: http://www.kryeministri-ks.net/zck/repository/docs/Human_Rights_Strategy.pdf; Strategy and National Action. Government of Kosovo. (2009). Strategy for the Integration of Roma, Ashkali and Egyptian Communities in the Republic of Kosovo 2009–2015, available at: http://www.kryeministri-ks.net/zck/repository/docs/Strategy_for_Communities_and_Returns_2009-2013.pdf.

⁶⁵The Government has also established the Language Policy Board on May 29^th 2012. Available at: http://www.kryeministri-ks.net.