Constitution-making and statebuilding in Kosovo: we (you) the people

ABSTRACT

How is ‘the people’ constituted in post-war, internationally administered Kosovo? As an internationalised territory and with an unresolved political status, the post-war interim constitution-making process was mainly shaped by a non-consensual idea of statehood regarding whether Kosovo was entitled to sovereign statehood. This article traces the antagonistic goals between Albanian and Serb ethnic groups within the country, on the one hand, and the international statebuilders, on the other hand, during the constitution-making process. Kosovo’s post-war constitution-making became the main instrument of an incremental international statebuilding. Although international statebuilders pursued neither a deliberative nor a consultative approach throughout the constitution-making process, they engineered a liberal constitutional content which imposed the highest standards of minority rights in post-war Kosovo.

KEYWORDS:

• Constitution-making process/content
• international statebuilding
• consultation
• participation
• demos
• ethnos

Introduction

What is the ‘people’ for international statebuilders, and how are democratic constitutions and new states built after the conflict? Whereas, for internationals, the will of the people is pluriversal, continuously represented through perplexed tactics, articulations, and activities of different groups, locals conversely often give the people a mythological character, portraying it as monolithic, indivisible, and unique. For the latter, the self-determination of the people is defined as self-determination of the respective dominant ethnic group. Hence, demos with ethnos are tangled to each other and taken interchangeably. Countries in protracted conflicts in Southeastern Europe, including the formerly federated Yugoslavia, define the nation in ethnic terms, and Kosovo is not an exception. In these countries, as Ulrich K. Preuss rightly observes, ‘the nation is a prestatist, prepolitical, existential and almost eternal entity, where the state is a quasi-accidental and ephemeral phenomenon, which supports the survival of the nation in history, but is not really the embodiment of the essence of the nation’.¹

The constitution-making process in most post-conflict settings is shaped by ethnic elites who try to build a constitutional content that aims to embody the will and the aspirations of the sovereign nation, the latter being mainly understood in ethnic terms. However, if examined from the viewpoint of modern constitutionalism, the exclusion of ethnic minority groups in shaping and influencing the new constitutional design is considered improper and undemocratic. This is so, as ‘the idea of modern constitutionalism is the separation of fellow-feelings of a nation from the structure of government and the rights of individuals given from the constitution’.² Modern constitutionalism denotes a method of limiting the powers and arbitrary decision-making of the majority group and institutionalising norms, institutions, and mechanisms for protecting minority rights.³ Led by the paradigm of modern constitutionalism, scholars today are rethinking the relationship between popular sovereignty and the new constitution-making process in post-conflict settings. Andrew Arato coined the term ‘post-sovereign constitution-making’ to signify this paradigmatic shift.⁴ The paradigm draws the distinction between popular sovereignty and constituent power, where the latter, embodied in constitutional assemblies, is not a synonym for popular sovereignty but one of the instances of establishing the popular will, alongside other actors and institutions.

Until the 90s, conflicts were mainly ordered along inter-state lines. This trajectory underwent a drastic change with the end of the Cold War, where the vast majority of conflicts were modelled according to intra-state parameters. Due to the lack of institutional capacities, many intra-state conflicts pose a threat to regional and international security. Consequently, international statebuilding actors, organisations, and missions are deployed in conflict-prone societies to restore peace and order. The purpose of these statebuilding operations is to build or rebuild the institutional capacities in conflict-ridden societies, to bring the state back, and to enable it to govern efficiently and be legitimised in accordance with the will of their citizens. International statebuilders have mainly supported the so-called ‘liberal peace’, which is grounded in the principles of the separation of powers, the rule of law, and respect for human and minority rights.⁵

After the Cold War, the constitutional expertise of the international community was mainly directed and delivered towards assisting post-conflict societies in drafting new constitutions and accepting the international standards and norms of human and minority rights. Although earlier constitution-making processes were considered an endeavour of a small group of experts, constitution-making nowadays is expected to be conducted and evaluated based on these parameters of legitimacy. The present quest of peacebuilding and statebuilding missions operating in post-conflict settings today is to conceive the constitution-making process as a local democratic process, which is dependent upon local legitimacy. Designed and adopted through such a participatory and deliberative mode, the new constitution-making is meant to be a healing process, addressing the hopes and fears of groups in conflict.⁶ However, this was not how it worked in Kosovo, when in 1999 a peacebuilding and statebuilding mission (UNMIK) was deployed in the country to halt a protracted conflict, rebuild peace, and set up a new institutional design. The involvement of international state-builders in Kosovo’s constitution-making process was extensive, although they did not fulfil many democratic parameters during the constitution-making process. Constitution-making in Kosovo was engineered through a top-down approach, and the international statebuilders were hesitant and sceptical of involving all stakeholders and consulting with the local population throughout this process. However, we have to make a distinction between the undemocratic nature of the constitution-making process, on the one hand, and the constitutional content, on the other hand. The constitutional content in Kosovo, engineered through international expertise, met the highest democratic standards for protecting human and minority rights.

In You, the People (2004), Simon Chesterman has observed a tension ‘between the ends of liberal democracy and the means of benevolent autocracy’.⁷ This tension exists in today’s practices of international statebuilding in which democratic institutions are put in place through undemocratic means. The tension between ‘liberal ends and illiberal means’ was also present in Kosovo. The scale of the international intervention in shaping the institutional and constitutional design was unparalleled. Regarding post-war Kosovo, in terms of both constitutional and institutional design, the authorship and ownership was rather international than local. Subsequently, a sense of ‘You the People’ was externally imposed. By combining a triple theoretical approach – political theory, comparative constitutionalism, and the paradigm of liberal statebuilding – this paper aims to shed light on how ‘we, the people’ has been practically constituted in Kosovo, how local agency has been neglected, and how the constitutional content (what will later be known as the Constitutional Framework for Provisional Self-Government in Kosovo) has been largely imposed, while pursuing the highest standards of protecting and promoting both individual and group rights for the minority communities.

In terms of the constitution-building process in Kosovo, this paper analyses the antagonistic goals of the two conflictive ethnic groups in Kosovo – Albanians and Serbs – and the international statebuilders. With what follows, this paper is divided into three sections. The first section presents a background about the origin of the conflict. The second reviews theoretically the well-documented international practices of constitution-making in post-conflict societies. The third employs Andrew Arato’s approach to examine the constitution-making and statebuilding processes in Kosovo. To shed some light on both processes, we have taken into consideration three factors: the democratic process, the legal content, and the political context. We conclude that, despite the limited deliberative approach employed by international statebuilders in the country’s constitution-making process, its content was in accordance with the highest constitutional standards applied in today’s modern democracies.

Old enmities in a new geopolitical context: 1974 –1999

The enmities, hostilities, and mistrust between the Kosovar Albanians and the Yugoslav (Serbian) authorities can be traced back to more than one-hundred years, but during the 90s the conflict gained a new geopolitical dimension, which unavoidably required an international solution.⁸ The underlying dispute in this conflict is not only related to the historical narrative of who inhabited first Kosovo’s territory and who is entitled to it—i.e. Albanians or Serbs – a historical discussion that is not very relevant today when the human rights discourse dominates any other discussion. Moreover, the deep-rooted dispute is related to the discriminatory policies and systematic violations of human rights of Yugoslav (Serbia) authorities to Kosovar Albanians, even though the latter constituted the largest ethnic group in Kosovo. The 1974 Constitution of Yugoslavia granted Kosovo a self-governing autonomy within Serbia, through which it would enjoy some of the basic competences enjoyed by other Yugoslav republics. With the rise of Slobodan Milosevic to power, and with the 1989–90 constitutional changes within Yugoslavia (Serbia), Kosovo’s autonomy was invalidated, and Kosovo was completely subordinated to Serbia.⁹ As a result, Kosovar Albanians within Serbia were transfigured into a subaltern status, as their civil, economic and political rights were greatly restricted. During the 90s the public sphere in Kosovo belonged to the Serbs, while the private sphere belonged to the Albanians. The distance between Albanians and Serbs had reached its maximum limit during this period. The Serbs, as a privileged minority group, continued to rule over the overwhelming majority of the Albanian ethnic group, while the latter were being exposed to a marginalised life and strong repression by the Serbian police and military forces.¹⁰ Thus, as Weller rightly observes, ‘the conflict in Kosovo progressed from a struggle for identity and control of political power within an autonomous province as part of a federal structure to genuine self-determination conflict aiming towards secession’.¹¹

After Kosovo’s autonomy was invalidated in 1989, Albanians organised a peaceful resistance through the Democratic League of Kosovo (LDK), a civil and national movement that was led by the Albanian literary critic Ibrahim Rugova. In the course of internal fragmentation between centrifugal (the republics) and centripetal (Serbia) political forces within Yugoslavia, the latter began its irreversible process of disintegration. After the conflict in Bosnia and Herzegovina began and came to an end with the Dayton Agreement, the conflict in Kosovo had lost international attention. Rugova’s strategy for addressing the Kosovo conflict through peaceful means was not properly recognised and rewarded in the international community.¹² Subsequently, parallel to this peaceful approach, the Kosovar Albanians began to organise themselves militarily and founded the Kosovo Liberation Army (KLA), a guerrilla army which aimed to defend the Albanian civilian population from Serb military forces. Tensions between Kosovo Albanians and Serb authorities accelerated as the latter intensified attacks on the civil population. This culminated in ethnic cleansing of almost half of the Albanian population from Kosovo by Serbian military forces in 1999.

The persistent international efforts to bring conflicting parties to the negotiation table and end the Kosovo conflict, as a result, led to the Rambouillet Conference. However, this conference managed neither to bring the parties’ positions closer to a common agreement nor to end the conflict. According to the ‘Interim Agreement for Peace and Self-Government in Kosovo’ known as the Rambouillet Agreement, Kosovo’s autonomy had to be fully restored, together with its constitution and autonomous institutions, and consequently the laws promulgated by the latter could not be further cancelled or modified by Serbia. Moreover, three years after this agreement would come into force, a mechanism for determining the Kosovo final settlement had to be defined.¹³ While Serbia refused to sign this agreement, Kosovo’s Albanian delegation agreed. As a last resort, after several warnings to Milosevic, on 24 March 1999, NATO began its military operations against Yugoslavia (Serbia). Following a 78-day NATO air campaign, Serbian military, paramilitary and police forces were required to withdraw from Kosovo. Accordingly, based on Security Council Resolution 1244, which was adopted on 10 June 1999, a civilian (UNMIK) and military (KFOR) international administration was deployed in Kosovo in order to restore peace and to rebuild and democratise the country. Annex one of Security Council Resolution 1244 avowed the need for the rapid deployment of a civilian and military presence in Kosovo in order to end the violence and repression. Once KFOR was deployed on the ground – two days after the adoption of Resolution 1244 - the Yugoslav military forces begun to withdraw from the country in accordance with the so-called military-technical agreement between Yugoslavia and NATO.

It is necessary to recall that the 1999 international intervention in Kosovo occurred at a time when the international order was undergoing drastic changes subsequent to the end of the Cold War.¹⁴ The then-present international order was unipolar, and the mainstream international debate was about defining the core values of this order. As a matter of fact, one of the key dilemmas accompanying this debate was, on the one hand, how to guarantee international security from failed and failing states and, on the other hand, how to prevent non-democratic, sovereign states from abusing and violating the rights of their citizens. International intervention in Kosovo was modelled and justified on these grounds. The Kosovo issue was no longer an internal legal issue of Serbia’s sovereignty over Kosovo but also that of regional and international security, as the conflict was widening and regional security in the Balkans was seriously threatened.

The international intervention in Kosovo preceded the doctrine of the Responsibility to Protect, which emphasised that state sovereignty was to be understood in terms of international accountability.¹⁵ Accordingly, sovereign states were responsible for protecting human rights and not violating them. In the words of Kofi Annan, ‘State sovereignty, in its most basic sense, is being redefined. [S]tates are now widely understood to be instruments at the service of their peoples, and not vice versa. [W]hen we read the charter today, we are more than ever conscious that its aim is to protect individual human beings.’¹⁶ Understanding Serbia’s sovereignty over Kosovo through this lens, it became evident that the former broke the social contract with its Albanian citizens when it began violating their rights. Instead of using its sovereign powers as an instrument of service towards its citizens, Serbia misused its sovereignty by adopting discriminatory policies towards Kosovo Albanians, by excluding them entirely from public life and denying their very basic human rights. With Serbia’s sovereignty over Kosovo suspended, the international statebuilders paved the way for a political process which would enable Kosovars to establish a new social contract. With that being said, the country’s constitution-making process was not to be led by the liberal logic and the paradigm of the will of the people and the classical concept of sovereignty, but rather by the logic and paradigm of post-sovereign constitution-making. This process implied the recognition, regulation, and accommodation for individual and group rights, regardless of their ethnicity, and the writing of a democratic constitution, which is developed prior to ‘the will of people’ and understood in ethnic terms.

Post-sovereign constitution-making and statebuilding

‘Constitution making can play a central role in statebuilding’, argues Joanne Wallis, ‘because a constitution can represent a tangible manifestation of the social contract that creates state institutions, provides a legal framework for the exercise of state power, and establishes the relationship between the people and their government’.¹⁷ Building institutions after conflict and re-legitimising a new social contract involves a new democratic constitution-making process. This process marks the end of conflict and initiates the set-up of a new institutional design. Thus, the new constitution is to be understood as a ‘power map’,¹⁸ which depicts the locus of new political authority and the power sharing mechanisms that enables the transition from conflict to peace. Moreover, the new constitution aims to prevent the newly established sovereign from abusing the rights and freedoms of its citizens.¹⁹ It is thus symbolic of a new, peaceful, and democratic order, by which new, legitimate bonds between citizens and states are set and joint efforts are taken to pave the ‘road map on how to get there’.²⁰ Seen from this perspective, constitution-making is considered as a healing process in protracted conflicts, and also as a political and legal map of building a peaceful and cooperative political culture between rival groups. For this to happen, democratic institutional mechanisms are put into place to prevent and resolve potential conflicts.²¹ To put it in Ikenberry’s words, ‘constitutions are a form of legal constraint on politics, manifest[ed] as a declaration of principles that specify rights, protections, and basic rules’.²²

The evidence shows that newly written constitutions might reduce the likelihood of conflict recidivism if the problems of a genuine inter-elite dialogue and mutual trust among rivalry groups are properly addressed. Longer-lasting constitution-making processes are better able to contribute to peacebuilding than short-lasting constitution-making processes. According to a survey, up to 38% of overall constitutions in post-conflict societies are written in up to one year.²³ In Liberia or Haiti, for instance, the constitution-making processes took place within a short time frame, which was not beneficial for peace and led to the renewal of conflict. In both cases, it has been recognised that ‘conflict cessation without modification of the political environment even when statebuilding is undertaken through technical electoral assistance and institution- or capacity-building, is unlikely to succeed’.²⁴ Crafting a safe political and social environment where people are free and safe to express and articulate their needs and wants, prior to proceeding with the constitutional design, is one of the key parameters for legitimising a peaceful constitution-making process.

The Former Special Adviser to the Secretary-General of the United Nations, Lakhar Brahimi, rightly emphasised that the processes of drafting new constitutions, which serve peacebuilding, should not be rushed. According to Brahimi, ‘Elections are not the ultimate aim of a peace process and must be used as a mechanism to engender deliberation, participation and national reconciliation; they should not be turned into a superficial and hurried public demonstration of doubtful democratisation.²⁵ South Africa is considered one of the best deliberative models of post-conflict constitution-making where the above-mentioned parameters are met. The duration of this constitutional process lasted seven years (1989–1996), and it pursued a consultative approach while taking inputs from citizens and reflecting them as outputs in the constitutional design. Likewise, Rwanda, while designing its 2003 constitution, adapted a similar approach. Conversely, in the cases where there is a lack of internal or external security for the given community or groups at whom the constitution is aimed, the participatory constitution-making process should be delayed, and, instead of rushing to drafting a final constitution, the international community should support a temporary constitutional arrangement.²⁶

In this paper, we employ Andrew Arato’s paradigm of ‘post-sovereign constitution-making’ to explain the constitution-making process in Kosovo, where the constituent power was not embodied in any single organ and where the constitutional-making processes and methods were brought under legal rules.²⁷ Accordingly, the process of constitution-making hereafter is considered a multi-stage process with constitutionalism applied not only at the result itself—i.e. the content of the constitution – but also the process is developed in accordance with democratic and constitutional principles. The main characteristic of this process is the production of two constitutions: an interim constitution, known as the préconstitution, and the final constitution. The practice of the préconstitution (Loi constitutionnelle) dates further back in history, but it began to receive greater attention after the establishment of the Fourth French Republic with the so-called interim constitution on 2 November 1945. Although the term préconstitution initially experienced a bad reputation, the préconstitutions were made part of the constitution-making processes not only in Spain, Hungary, and South Africa, but also in Germany and Japan, as American occupied territories, after the Second World War. In post-conflict societies, the challenge to design the interim constitution emerged as anti-dictatorial impulses and due to the lack of proper societal conditions for drafting the final constitution.²⁸

Although in most conflict-prone societies the international statebuilders cannot begin building local institutions deliberatively and through democratic methods, scholars argue that there are always ‘legitimate and illegitimate beginnings’.²⁹ The post-sovereign constitution-making method aims to fill this gap by addressing the issue of legitimacy by bringing together political actors who might hold adversarial and even incompatible goals regarding the issues related to the new constitution. This post-sovereign constitution-making method holds that no single agency writes the constitution, be that an institution or individual who claims to embody the sovereign power and authority of the ‘constituent people’. The concerns related to the legitimacy of the constitution-making process are addressed through principles which aim to “mobilise pluralistic forms of justification relying on multiple values: plurality, inclusion, publicity, fairness, compromise, generosity, and legality – including even the application of constitutionalism to the very process of originating constitution’.³⁰ The post-sovereign constitution-making denotes a method that goes against ‘the tyranny of the majority’.

With the main focus of this paper being Kosovo’s interim constitutional framework, it is important to distinguish between the interim and final constitutions. Interim constitutions, unlike peace agreements and final constitutions, are designed to serve for a limited period of time. They aim to fill the legal vacuum in post-conflict settings and enable the political transition from a non-democratic regime to a democratic one. As flexible platforms, they are legal instruments through which trust between conflicting groups is built. This allows for the establishment of legitimate institutions and lessons for the final constitution. According to the International Institute for Democracy and Electoral Assistance, since 1945 there have been 89 interim constitutions adopted in different parts of the world. While until the 90s most of the interim constitutions were adopted after coups, during and after the 90s many countries adapted new interim constitutions as they had to face new political circumstances, be that independence, secession, decolonisation, the fall of communist or other authoritarian regimes, or as a result of ending violent conflicts.³¹

There are two main macro models for constitutional design that are applied in post-settings by the international statebuilders: one is related to integration, the other to accommodation. The integrationist model provides a single public identity for the state. Put it in the metaphorical terms, as McGarry, O’Leary, and Simeon have portrayed this model, the state is considered a:

[S]ingle public house, a Le Corbusier-style tower block with uniform apartments. It makes no formal recommendation on how high-rise private apartments should be maintained or decorated. Integrationists primarily seek the equality of individual citizens before the left and within public institutions. With the exception of the state’s citizenship they are against the public institutional recognition of group identities, but they accept collective diversity in private realms. [A]ccommodation, by contrast, commends a legally flexible condominium complex, one that respects historic hybrids, add-ons, multiple architects, and contrarian interior designers, and makes no effort to achieve uniformity in the mansion ensemble. Accommodation promotes dual or multiple public identities, and its proponents advocate equality with institutional respect for differences.³²

The Carnegie Commission on Preventing Deadly Conflict has, on the other hand, promoted the accommodation model to fragmented societies with deep ethnic divisions and with no democratic tradition. In this model, the majoritarian democracy is not the proper one to bring peace to conflict-prone societies, as the model can be self-defeating for minority ethnic groups in conflict.³³ International statebuilders adopted a non-majoritarian democracy institutional architecture while engineering Kosovo’s interim constitution. Post-war statebuilding is defined here as ‘strengthening or construction of legitimate governmental institutions in countries that are emerging from conflicts’.³⁴

(We) You the people: préconstitution as post-war settlement

The method of post-sovereign constitution-making was employed in Kosovo not only as a strategy for building a democratic regime but also as an instrument of incremental statebuilding. The first stage of constitution-making took place at the beginning of 2001, after the country was placed under international protection. After a civilian administration (UNMIK) and a military force (KFOR) was deployed in Kosovo, the international statebuilders adopted a top-down approach to designing an interim or transitional constitution. This legal instrument aimed to serve as the legal basis for building the country’s first post-war democratic institutions. Constitution-making was designed in two phases, not only because post-war Kosovo lacked the internal conditions to guarantee a safe and secure environment to the minority communities at risk but also because a strategic, interim document was necessary to manage the transitional period until the country’s political status was defined. However, Kosovo’s political status remained undefined according to UNSC Resolution 1244. Thus, the interim constitution became the main legal instrument for governing a non-state political entity that would be administered internationally.

Resolution 1244 outlined a roadmap regarding how Kosovo would evolve politically during UNMIK’s administration. This map outlined the main responsibilities of UNMIK and enumerated four stages of international statebuilding in Kosovo: a) organisation, supervision, and development of contemporary democratic institutions, including the holding of elections; b) consolidation of these institutions through the transfer of responsibilities from UNMIK to the provisional institutions; c) facilitating the dialogue for determining the future status of Kosovo and d) ‘[i]n a final stage, overseeing the transfer of authority from Kosovo’s provisional institutions to institutions established under a political settlement’.³⁵ According to the Rambouillet Agreement and UNSC Resolution 1244, Kosovo enjoyed substantial autonomy during the transitional phase of international administration.

Democratic process: ownership/legitimacy and local agency

‘Where there is no democracy one cannot begin democratically’, claims Andrew Arato.³⁶ Kosovo’s constitution-making process was no exception in this regard. The international statebuilding agencies did not employ democratic or deliberative methods when they began building the constitutional and institutional infrastructure in post-war Kosovo. UNMIK was mandated to restore order and bring sustainable peace, and the newly set constitutional design was meant to enable the country’s dual political transition from war to peace and from communism to democracy. In 2000, immediately after UNMIK was deployed in Kosovo, a group of Albanian legal experts from civil society began drafting a constitution named the ‘Interim Constitution of Kosovo’. The drafters of this constitution presented Kosovo’s issue as a political problem of self-determination and, for this problem to be solved constitutionally, they designed a referendum that would ask the people to democratically express their will regarding Kosovo’s final political status.³⁷ Ignoring this proposal, in 2001, international statebuilders began designing an internationally led constitution-making process within the parameters of UN Resolution 1244. UNMIK was mandated to establish autonomous and self-governing provisional institutions in post-war Kosovo, while deferring the issue of the country’s final political status as either an autonomous province or an independent state.

The Constitutional Framework for Provisional Self-Government in Kosovo (hereafter: Constitutional Framework), aimed to provide, in Lerner’s words, ‘[t]he citizenship with a sense of ownership and authorship, a sense of “We the People”.’³⁸ Although ‘how’ the constitutions are designed is as important as ‘what’ kind of constitutions are designed, UNMIK was more concerned with the latter than the former. The constitutional process was therefore mainly designed through a ‘top-down’ approach. The Constitutional Framework was largely imposed in an undemocratic fashion.³⁹ The international-statebuilding top-down approach to designing and engineering its content was considered ‘a sui generis case of external democratisation’ where, for the first time, the United Nations ‘go[es] so far as to draw up a regulatory framework of a constitutional character for the states or territories concerned’.⁴⁰ Although a constitution is considered a ‘national autobiography’,⁴¹ this could not be considered fully so in Kosovo. The international statebuilders intervened extensively in Kosovo’s constitutional design and flouted bottom-up local agency. More than an ‘national autobiography’, the Constitutional Framework could be considered an ‘international autobiography’ that lacked genuine local ownership.

In post-conflict societies, such as Kosovo in 2001, the evidence shows that new interim or transitional constitutions should not be unilaterally imposed if it is to enjoy local legitimacy. However, as Andrew Arato argues, agreement and imposition should not be treated as absolute variables but rather as scale variables for ‘neither pure imposition nor pure agreement can be the starting points of a legitimate new political order’.⁴² Since every constitution-making process implies some degree of imposition on members or groups who do not fully agree with the constitutional content, it appears as a democratic imperative that the internationally-led constitution-making process should not be completely imposed in order for internal pluralism in these post-conflict settings to be peacefully expressed and manifested in the constitutional process and content. Conversely, where the international statebuilders completely impose a constitutional design upon a post-conflict society, this means ‘degrading the people to a thoroughly passive and subaltern status, which is exactly what constitutionalism is supposed to overcome in the first place’.⁴³

However, the people of Kosovo were not entirely passive in the constitution-making process, as neither pure imposition nor pure agreement was reached regarding its content. In order to move towards organising the general elections and establishing the central institutions, on 6 March 2001, the Special Representative of the Secretary General (hereafter: SRSG) of UNMIK, Hans Haekkerup, established the Joint Working Group (hereafter: The Group) and appointed its members. UNMIK circulated a draft-document and presented it to the Kosovo leaders and members of the Group who, although initially rejecting it altogether, defined and shaped the limitations and mandate of the Group. The task of the Group was to draft a legal framework ‘which would form the backbone of the Legal Framework on Provisional Self-Government. [And] remain firmly within the parameters set out in SCR Resolution 1244 and [n]ot prejudge a final political settlement’.⁴⁴ The Group represented diverse political views of both international and local actors. Kosovars were represented in the Group by their main political parties, civil society actors, and independent representatives. The disputed issues during the constitution-making process had to be accommodated within the parameters of Resolution 1244. The process was led by the logic of output legitimacy, ensuring thus that the Group performance would be measured based on outputs; that is, the democratic content of this legal document.

Input legitimacy was not a key priority in this constitutional process, as no constitutional convention, derived from a democratically elected process, was established. Thus, the will of the people, in the liberal sense, expressed through legitimate and democratically elected representatives, was not an instance to be taken into consideration while drafting this main legal document. The will of the people, in its mythological sense, as homogeneous, organic and indivisible, was viewed with scepticism by the international statebuilders. As Marc Weller argued:

There was no democratically legitimised constitutional drafting process, say, through a constitutional convention. Instead, the document was internationally established with the involvement (or, in the case of the Serb community, with the possible involvement) of experts. Some of these experts were in fact affiliated with the principal political parties in Kosovo. Hence, local ‘ownership’ of the drafting process was fairly limited.⁴⁵

The legitimising deficit of the newly designed constitution-making process was addressed through several inclusive roundtables and working meetings of a diverse group of local and international actors. This group consisted of fifteen local and international experts: three experts from the main Albanian political parties (Fatmir Sejdiu, Democratic League of Kosovo - LDK, Arsim Bajrami, Democratic Party of Kosovo - PDK, Muhamet Kelmendi, Alliance for the Future of Kosovo - AAK), civil society (Blerim Reka) an independent representative (Blerim Shala), one Kosovar Serb (Djordje Aksić), two from other minorities and seven international experts. The Group was led by Johan van Lamoen, an expert who was later involved in drafting the constitution of East Timor. The Serbian representative withdrew from the Group in the very first week and his very act of withdrawal was justified on the grounds that the proposed legal document enabled Kosovo to become an independent state. Subsequently, for the authorities of Yugoslavia (Serbia) and the Kosovo Serbs, the proposed legal document was unacceptable. Later, the two independent Albanian experts also resigned and justified their resignation on opposite grounds, arguing that the proposed legal document prevented Kosovo from becoming an independent country. Consequently, the document failed to address both the fear of Serbs and the hope of Albanians regarding Kosovo’s final status.

The Group became functional and worked for nine consecutive weeks from March to the beginning of May 2001. It discussed all proposed options within the parameters of Resolution 1244 and time-wise drafted one of the fastest constitutional content compared to any post-conflict condition-making case.⁴⁶ In his final statement before leaving Kosovo, Chairman Johan Van Lamoen stated:

We have reached consensus on 99.9% of the text and I am very happy that this has happened. I have now to say goodbye and go back to East Timor where I will continue with the efforts to draft another constitution and prepare for the elections at the end of August which will lead to the establishment of the sovereign state of East Timor by the end of the year or the beginning of next year.⁴⁷

In Johan Van Lamoen’s statement, an analogy between Kosovo and East Timor was set, where the latter was aiming to become an independent state from Indonesia and adopt its new constitution. However, unlike East Timor, where the UN mission, UNTAET, was mandated to prepare East Timor for independence and the Indonesian government consented to and authorised a referendum, Kosovo lacked such political clarity during UNMIK’s administration. In Kosovo, the main disputes regarding constitution-making were the extent to which the new constitution would incorporate the elements of statehood and whether Kosovo would declare its independence from Serbia. Even though the local and international actors involved in the constitution-making process, to some degree, reached a consensus on how the institutional structures of Kosovo (legislative, judiciary and executive branch) would function and what their powers would be, still the following disputes prevailed: a) the title of the document; b) the request for a directly elected President; c) the nature of Constitutional Court; d) a referendum, and e) a ‘sunset clause spelling out the time period of provisional self-government’.⁴⁸ Apart from the first dispute regarding the name of the document for which a compromise was finally made, the other issues were not considered, and, consequently, full consensus between the parties was not reached. Although initially UNMIK proposed the document to be entitled the ‘legal framework’, the Albanian parties disagreed and insisted that the document should be entitled ‘Interim Constitution’. A compromise regarding the name of the document was reached, and the document was entitled the ‘Constitutional Framework’.

While two Kosovo Albanian political parties, LDK and AAK, considered the draft proposal a ‘fair compromise’, the document was rejected by PDK. PDK and AAK, the two political parties arising from the Kosovo Liberation Army (KLA), already had a different stand on this document. Hashim Thaçi, as party president of PDK, expressed his concerns that ‘this document will hold hostage the aim of the people of Kosovo, which is independence’.⁴⁹ After failing to reach a full consensus on the matter, on 15 May 2001, Hans Haekkerup, Special Representative of the Secretary-General, unilaterally signed the Constitutional Framework for Provisional Self-Government in Kosovo. Soon after that, UNMIK organised a media campaign to inform the citizens of Kosovo about the content of the document. Though the result was that many attributes of Kosovo statehood were embodied within the Constitutional Framework, the main political demands of Kosovar Albanians, with regard to integrating the clause of a referendum into the document and establishing a Constitutional Court, were not accepted.⁵⁰

The post-sovereign constitution-making approach enabled the international statebuilders to constitute ‘a demos’ in its inclusive sense of ‘We the people’, a people who, though considered the author/actor of the constitution, never acts and never speaks. For Michael Riegner the ‘pouvoir constituent in Kosovo [was] largely absent in the interim period – at least if understood in the liberal sense, which requires it to be connected in some way to the will of the people’.⁵¹ Put simply, on the one hand, the Constitutional Framework was top-down engineered and designed to avoid any undemocratic tendency or impulse of the Albanian majority group towards reducing the rights of the Serb minority community and, on the other hand, to avoid from the latter any political tendency or demand which might make Kosovo’s provisional institutions dysfunctional. Nevertheless, there was a lack of consensus between local and international actors regarding the idea of an independent Kosovo, which was the goal of the majority of the country’s population, Kosovar Albanians.

Legal content: texture of the constitutional framework

The international statebuilders in Kosovo had the mandate not only to democratise its society but also to give its people a sense of territorial and institutional belonging. The key dilemma which shaped the policy of the international statebuilders in Kosovo was to whom this territory belongs now and to whom it should belong in the future. Both questions had no clear-cut answer within the context of the Constitutional Framework. The Constitutional Framework did not contain any reference ‘to the achievement of independent [Kosovo] statehood. On the other hand, the FRY [Federal Republic of Yugoslavia] [was] not mentioned by a single word’.⁵² Subsequently, the Constitutional Framework was written with an ambiguous and vague language and, rather than clarifying it, masked the dilemma regarding how Kosovo’s final status should be solved. The document, on the one hand, referred to UNSC Resolution 1244 (which recognised the sovereignty of Yugoslavia over Kosovo), and, on the other hand, emphasised that the international documents and instruments and the will of the people of Kosovo will be taken into consideration in the final stage, when the time for solving the final status arrives. Even if the will of the people had to be taken into consideration in defining the country’s political status, as Hajrullahu has argued, the concept of the people in the provisions of the Constitutional Framework was constituted based on a political criteria, as a demos, rather than according the ethnic criteria, as ethnos.⁵³

Although the reference on the sovereignty of Yugoslavia (Serbia) over Kosovo was de jure absent in the text of the Constitutional Framework, de facto the Yugoslavia (Serbia) sovereignty over Kosovo was suspended in 1999 when UNMIK and KFOR were deployed to Kosovo. Since 1999, ‘politically and legally’ Kosovo ‘became a new political entity’.⁵⁴ The Constitutional Framework presented Kosovo as an internationalised territory. Kosovo was considered “an entity under interim international administration which, with its people has unique historical, legal, cultural and linguistic attributes”; and, as “undivided territory” “shall be governed democratically through legislative, executive and judicial bodies”.⁵⁵ The Constitutional Framework determined that “Kosovo’s future status through a process at an appropriate future stage shall…[t]take full account of all relevant factors, including the will of the people”. The preamble of the Constitutional Framework envisaged “the setting up and development of meaningful self-government in Kosovo pending a final settlement”. This meaningful self-government had to be concretised after the establishment of provisional self-governing institutions, such as the Assembly, President of Kosovo, Government, Courts, and other bodies. The process of establishing these institutions had to be inclusive in terms of minority communities’ representation, and the latter was considered as a litmus test for inter-ethnic trust and a safe inter-ethnic environment. Having these goals in background, the Constitutional Framework incorporated the main international human rights instruments, from The Universal Declaration of Human Rights to the Council of Europe Framework Convention for the Protection of National Minorities (FCNM). Setting the proper conditions for enforcing the international human and minority rights standards was seen as a precondition for proceeding with Kosovo’s final political status.

Kosovo’s institutional architecture, which derived from the Constitutional Framework, modelled the country’s consociational democracy with power-sharing mechanisms set in place to accommodate the minority communities. The institutional architecture was not designed as a Le Corbusier-style house with uniform apartments for all communities but as a condominium complex, where each community was ensured its political, cultural and identity space within this condominium complex. Led by this model, international statebuilders engineered a political system for accommodating, representing, and protecting minority communities in Kosovo. The electoral system, designed for ensuring the representation of minority communities, was proportional: there could not be absolute winners of the elections, on the one side, and absolute losers, on the other. This electoral system aimed to facilitate consensus, cooperation, and joint decision-making among all rivalry groups. Kosovo was established as a parliamentary democracy where the Prime Minister and the President were elected in Kosovo’s Assembly. The President was meant to play a unifying constitutional role within society and stand above the political fray.

In order to foster the spirit of peaceful cooperation among the communities in post-war Kosovo, the minority communities’ political representation was guaranteed. Twenty of the 120 seats within Kosovo’s Assembly were distributed to parties, coalitions, initiatives, and independent candidates of the non-Albanian communities. Out of these twenty reserved seats for minority communities, ten were reserved for the Serbian minority community, and ten for other communities (Roma, Ashkali, Egyptian, Bosnian, Turkish, Gorani). Out of eight members of the Kosovo’s Assembly Presidency, one was elected from the Serb community and another one from the non-Serb minority community. Among the permanent committees established in Kosovo’s Assembly was the Committee on Rights and Interests of Communities, which consisted of two representatives of each minority community. This Committee was mandated to propose legal initiatives, review proposed laws, and establish respective amendments and recommendations. In those cases, where the approved laws were in conflict with the ‘vital interests’ of the minority communities, within 48 hours the Committee could submit a motion to the SRSG and ask for its cancellation. In addition to the representation of minority communities in Kosovo’s highest legislative body, the Constitutional Framework granted minority representation throughout the other governmental structures as well. In Kosovo’s governing cabinet, which consists of twelve ministers, two belong to minority communities: one for Serb and one to other minority communities, with the possibility of an additional minister for non-Serb minority communities, in which case Kosovo’s governing cabinet would have more than twelve ministers.⁵⁶ Although Kosovo’s Serbs made up less than 5 percent of the country’s population, both the Albanian and Serbian languages were recognised as official languages. With what has been said, the ‘Constitutional Framework, ‘[went] far beyond [the] vague language of the FCNM by introducing proportional representation and participation of “non-majority communities” in the legislative, executive and judicial branches’.⁵⁷

Although the Constitutional Framework did not create a Constitutional Court, it fashioned a Special Chamber of the Supreme Court on Constitutional Matters that served as a substitute. A mechanism was established in which different parties (such as the President of Kosovo, representatives of the Presidency of the Assembly, members of the Assembly, and the Government) could address constitutional issues. Unlike the constitutional design in South Africa, where the Constitutional Court played a pivotal role in the constitution-making process, a similar practice was not employed in Kosovo. It is evident that the Constitutional Framework was drafted ex novo and without the supervision of a supervising institutional mechanism. The final provisions of the Constitutional Framework envisaged a weak democratic procedure for its amendment, since at any time the SRSG itself (as well as two-thirds of the members of the Assembly) could amend the Constitutional Framework. In fact, from 2001 to 2008, the Constitutional Framework was never amended. This goes against well-established practices that ‘the interim constitution should allow for its amendment more easily than the final constitution’.⁵⁸ Even after the Constitutional Framework was adopted, UNMIK retained its absolute authority in Kosovo. As an international administration which was structured and operated outside any democratic standards regarding checks and balances of power, UNMIK had the authority to dissolve Kosovo’s Assembly if it were to act in a manner which was not in conformity with UNSCR 1244 (1999).⁵⁹

Political context: self-governance without statehood

Richard Caplan (2004, 58) has rightly noticed: ‘The idea of international rule over foreign territory can be legitimate only if that rule is exercised on behalf of, and for the benefit of, the foreign population’.⁶⁰ Beginning as a liberating and welcomed international mission in Kosovo, as the time went by, UNMIK began to be perceived as an authoritarian and illegitimate mission that hindered, rather than enabled, the settlement of the final status.⁶¹ The first regulation of UNMIK ‘On the Authority of the Interim Administration in Kosovo’, which established UNMIK as an omnipotent and omnipresent mission, did not foresee accountability mechanisms towards Kosovo’s society: ‘All legislative and executive authority with respect to Kosovo, including the administration of the judiciary, [was] vested in UNMIK and [was] exercised by the Special Representative of the Secretary-General’.⁶² Parallel to this, UNMIK approved a regulation where its officials, including the SRSG, were granted immunity from any legal action, including arrest or detention.⁶³ Thus, as Jonas rightly observed: ‘UNMIK was granted powers in all fields of society’ and ‘from a legal and political point of view, functioned as the ‘surrogate State’, but it lacked ‘central features of a democratic system such as the division of powers with checks and balances and accountability of the administration and its personnel’.⁶⁴

On 17 November 2001, six months after the Constitutional Framework came into force, Kosovo’s first general elections were held under the tutelage of international statebuilders. Although the Kosovar Serbs refused to participate in the Joint Working Group for drafting the Constitutional Framework, they participated in the first general democratic elections organised in post-conflict Kosovo. UNMIK assumed a clear position that the forthcoming provisional institutions had no mandate to proceed with issuing a declaration of independence. Similarly, PDK, which considered the document unacceptable, participated in the elections, alongside LDK, AAK, and other parties. The Kosovo Serb Coalition Return, which participated in the general elections, won 18 seats, becoming the third political force with regards to the number of seats in Kosovo’s Assembly. Besides the ten reserved seats, with a turnout of 46 percent in elections, they also won eight more seats in the Assembly. After the elections results were officially presented, in accordance with the model of consociational democracies,⁶⁵ ‘a grand political coalition’ between LDK-PDK-AAK and the Serb Coalition Return was signed. The ‘grand coalition’ was engineered in such a way as to maintain the political stability of the country and preserve the multi-ethnic nature of society. With these two single political goals in the background, after a negotiation process being mediated by international statebuilders, the first post-war government was established. In spite of his political ambition, the international statebuilders did not see the President of the PDK, Hashim Thaçi, the former Director of the Political Directorate of the Kosovo Liberation Army, as the most appropriate first prime minister of the country. Instead, Bajram Rexhepi, a fellow member of PDK, was proposed as the first post-war prime minister. LDK proposed Ibrahim Rugova as President, which was approved. This was the political methodology through which the international statebuilders engineered the first post war government coalition, with international and local political leaders in government to maintain the multi-ethnicity of the country’s society.

The Constitutional Framework foresaw that once the provisional self-governing institutions were put in place, the governing responsibilities were to be transferred from UNMIK to the local institutions in order to empower them with the necessary capacities and give them a sense of ownership before beginning the international process for negotiating and defining Kosovo’s final status. Nonetheless, UNMIK was hesitant to transfer these governing responsibilities. Transferring these powers and capacities to local institutions was perceived as ‘more than a matter of local ownership. It [was] a matter of sovereignty and statehood which remain[ed] unresolved’.⁶⁶ Since local ownership was related to the issue of statehood, UNMIK did not entrust the final authority in any area to Kosovo institutions. As detailed in the preamble of the Constitutional Framework, the provisional institutions ‘shall not in any way affect or diminish the ultimate authority of the SRGS’.⁶⁷ Having neither an exit strategy nor a mandate to solve Kosovo’s political status, UNMIK was forced to govern the country by maintaining the status quo. Fawn and Richmond have argued that ‘UNMIK realised that local actors were using the capacity building projects enacted through UNMIK to build a shadow state’,⁶⁸ so it monopolised all power and postponed strategically the process of building local capacities. Accordingly, the Constitutional Framework shaped a new political context that can be named as self-government without statehood.

Although, as foreseen in the Rambouillet Agreement, 2002 was the cut-off point for the international community to determine a mechanism to address the unresolved issue of status, the latter failed to keep this promise, and Kosovo remained in limbo until 2008. As a trade-off strategy of postponing this issue, in December 2003 UNMIK initiated a policy, titled ‘standards before status’, which set high democratic standards related to the rule of law and the return and reintegration of Serbs in Kosovo, before beginning the status negotiations in 2005. Paradoxically, neither Serbs nor Albanians were interested in fulfilling the ‘standards before status’ policy. The Serbs in Kosovo, backed up by the state of Serbia, established their own parallel institutions in their enclaves and received substantial financial backup from the latter. Successively, the Kosovar Serbs, and especially those in the northern part of Kosovo, contested both the international and local institutional presence. The attempt to involve Serbian political leaders in the working groups to implement the internationally set standards for Kosovo failed in March 2004, when they finally refused to participate in these groups. The Albanian political leaders, for whom the country’s final status was unclear, did not prioritise multi-ethnicity as their own institutional policy. For them, multi-ethnicity was perceived more as a political compromise than as a genuine policy for building inter-ethnic cooperation and consensus.⁶⁹ The Kosovo riots of March 2004 in due course produced a paradigmatic shift with regards to overturning the country’s status quo.⁷⁰ The international statebuilders no longer could govern Kosovo through the policy of ambiguity, ambivalence, and status quo. Balkans experts warned ‘that the status quo is not only unsustainable, it also might drive the region towards a new period of highly dangerous instability’.⁷¹ As a way out of the status quo, the International Commission on the Balkans proposed a four-stage political transition for Kosovo:

Kosovo’s sovereignty should develop from the status quo as defined by Resolution 1244 (stage one) to ‘independence without full sovereignty’ (stage two) (allowing for reserved powers for the international community in the fields of human rights and minority protection), to the ‘guided sovereignty’ (stage three) that Kosovo would enjoy while negotiating with the EU and finally to ‘shared sovereignty’ (stage four) inside the EU.⁷²

Subsequently, Kai Eide, a Norwegian diplomat appointed by the UNSC to assess the overall implementation of ‘the standards before status’, concluded that the ambiguity and the status quo about the status must end. In October 2005, the Security Council appointed the former Finnish President, Martti Ahtisaari, to mediate the negotiations between Kosovo and Serbia regarding Kosovo’s political status, and after 15 months of negotiations, he proposed, as a solution, a supervised independence for Kosovo. Although his proposal was altogether rejected by Serbia, Kosovo unilaterally approved the Comprehensive Proposal for the Kosovo Status Settlement, which was later to be known as the Ahtisaari Plan. On 17 February 2008, Kosovo declared its independence and made a commitment to accept and implement fully the spirit of the Ahtisaari Plan which, as a matter of fact, contained three guiding principles through which an independent and sovereign republic of Kosovo would be modelled: Kosovo had to be established as a democratic, secular, and multi-ethnic society. The Constitution of Kosovo, which finally entered into force on 17 June 2008, embodied all the Ahtisaari’s provisions regarding the protection of minority communities. The new Kosovo Constitution expanded further the rights of minority communities by setting up new power-sharing mechanisms related to the representation of minority communities in all institutions at the local and national level.

Conclusion

The Constitutional Framework aimed to be the epitome of building a peaceful co-existence between the main ethnic groups in Kosovo: the Albanians and the Serbs. The content of it merged norms and aspirations to provide the Kosovo post-war society with a democratic sense of ‘We the People’. Although the evidence shows that constitution-making processes that last longer are better able to build peace and prevent conflict recidivism, as compared to those that last for shorter periods of time, the constitution-making process, though unfolding over one of the shortest time periods around the world, proved itself successful in terms of preventing the renewal of conflict. Since the country came under international administration in 1999 and until its declaration of independence in 2008, conflict recidivism was prevented in Kosovo. With the withdrawal of Serbian military and police forces from the country and with the deployment of a UN civil and NATO military administration, the main source of the conflict was eradicated. Serbs who continued to live in Kosovo were mainly isolated in their enclaves, and although there were incidents of inter-ethnic confrontation after the war, they began to decrease over time. Nevertheless, the ethnic and religious homogeneity of Kosovo, consisting primarily of moderate Albanian Sunni Muslims solidified social cohesion and self-restraint that mostly prevented the renewal of conflict.

The scale of international intervention in engineering the Constitutional Framework was extensive and local agency was mainly neglected. The interim Constitutional Framework of Kosovo, unilaterally approved by the SRSG, as a full consensus among rival ethnic group elites was never reached with regards to neither the constitution-making process nor its content. Although Kosovo Serbs mostly boycotted the constitution-making process, they participated in the first post-war elections. Kosovo Albanians, however, drafted at the beginning a constitution according to which their right to self-determination through a referendum was recognised. Nevertheless, the international statebuilders proposed their constitutional draft and employed a top-down approach to engineering a post-sovereign constitution-making content within the parameters of Resolution 1244. Kosovo’s political status remained in limbo. The international statebuilders administered Kosovo during a transitional period with a clear mandate to bring back order and peace. The new internationally engineered Constitutional Framework was silent with regards to the country’s political future. According to the Constitutional Framework, the will of the people – understood by the local population mainly in ethnic terms – would be one of the instances for determining the status of Kosovo, but not the only one. This meant the international statebuilders had to engineer a Kosovo ‘demos’ within the Constitutional Framework and put in place suitable power-sharing instruments through which the rights of minorities could be protected and potentially the ‘tyranny of majority’ hindered. Although the international statebuilders managed to avoid undemocratic impulses of the Albanian majority group to abandon the rights of minorities within the interim constitutional content, the constitution-making process had several democratic shortcomings with regards to public participation, deliberation, and consultation.

The fear of the overwhelming majority of Kosovo’s population, which is that their political demand will not be taken into consideration while the country’s political status is determined by international statebuilders in the future, increased their frustration and anger against both the international statebuilders and the Serbian minority. This frustration and anger was manifested in the March riots of 2004. The status-quo had become unstable in Kosovo, and, thus, the UN was forced to initiate internationally led negotiations to determine the country’s final political status. While for international statebuilders Kosovo was a technical problem of building the institutional self-governing capacities in a post-conflict setting, for most of the Kosovo population, namely Kosovo Albanians, the primary political problems were sovereignty and statehood. Through an internationally led negotiation process, it was recommended that an internationally supervised independence was the most optimal solution for Kosovo. Based on this recommendation, and not through a referendum, Kosovo declared its independence and adopted its constitution with advanced power-sharing mechanisms that seek to guarantee the rights of minority communities.

Acknowledgments

The author is very thankful to Chris J. Dolan (University of South Carolina), Cameron Mailhot (Cornell University) and Rand Engel for reading and commenting on this article. As native English speakers, their review contributed both to content and clarity. Thanks as well to two anonymous reviewers and editors for their consecutive feedback and valuable suggestions.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Adem Beha

Adem Beha is Associate Professor of Political Science at the University of Prishtina. He has served as a consultant, trainer, and researcher with domestic and international civil society organisations, including the Kosovo Institute of Peace, the Centre for Political Courage, and the Berghof Foundation. His research interests and expertise include state and peacebuilding studies, political parties, and minority rights. He is the author of three books: Notes on Statebuilding: Ambiguity, Independence, and Governance in Kosovo (Logos-A: Skopje, Pristina, Tirana, 2019); Between Stabilization and Democratization: Political Parties, Elections and Intra-Party Democracy in Kosovo (Friedrich Ebert Stiftung, 2017); Hybrid Statebuilding: Creative Ambiguity as a Policy of International Administration in Kosovo (ALBAS, 2022), and several book chapters published with Routledge, Palgrave Macmillan, Peter Lang, etc. His work has been published in Nationality Papers, Southeast European and Black Sea Studies. Journal of Ethnopolitics and Minority Issues in Europe, Journal of Peace, Conflict and Development, Journal of Conflict Transformation and Security, and Region: Regional Studies of Russia, Eastern Europe, and Central Asia. Currently, he is Vice-Dean of Research at the Faculty of Philosophy at the University of Prishtina.

Notes

¹ Ulrich Preuss, ‘Constitutional Powermaking of the New Polity: Some Deliberations on the Relations Between Constituent Power and the Constitution’, in Constitutionalism, Identity, Difference, and Legitimacy Theoretical Perspectives, ed. Michel Rosenfel (Durham and London: Duke University Press, 1994), 152.

² Ibid., 164.

³ Jamal Benomar, ‘Constitution-Making and Peace Building: Lessons Learned from the Constitution-Making Processes of Post-Conflict Countries’, (UNDP, August 2003).

⁴ See: Andrew Arato, ‘Interim Imposition’, Ethics & International Affairs 18, no. 3 (2004): 25–50; and Andrew Arato, The Adventures of the Constituent Power: Beyond Revolutions (Cambridge University Press, 2017).

⁵ Oliver Richmond, ‘The Problem of Peace: Understanding the ‘‘Liberal Peace”’, Conflict, Security & Development 6, no. 3 (2006): 291–314.

⁶ Rhodri Williams, ‘Assistance and the Rule of Law in Post-Conflict Transitions: An Overview of Key Trends and Actors’, (Folke Bernadotte Academy, 2013); and Kirsti Samuels, ‘Postwar Constitution Building Opportunities and Challenges’, in The Dilemmas of Statebuilding: Confronting the Contradictions of Postwar Peace Operations, ed. Roland Paris and Timothy Sisks (London: Routledge, 2009).

⁷ Simon Chesterman, You, the People: The United Nations, Transitional Administration, and State-Building (New York: Oxford University Press, 2004), 257.

⁸ See: Noel Malcolm, Kosovo: A Short History (New York: New York University Press, 1998); Howard Clark, Civil Resistance in Kosovo (London: Pluto Press, 2000); and Marc Weller, Contested Statehood: Kosovo’s Struggle for Independence (Oxford: Oxford University Press, 2009).

⁹ Alex Bellamy, ‘Human Wrongs in Kosovo: 1974–99’, The International Journal of Human Rights 4, no. 3 (2000): 105–26.

¹⁰ Shkelzen Maliqi, ‘Albanian Self‐Understanding through Non‐Violence: The Construction of National Identity in Opposition to Serbs’, Journal of Area Studies 1, no. 3 (1993): 120–28.

¹¹ Marc Weller, ‘Interim-Governance for Kosovo: The Rambouillet Agreement and the Constitutional Framework Developed under UN Administration’, in Settling Self-determination Disputes: Complex Power-sharing in Theory and Practice, ed. Marc Weller and Barbara Metzger (Leiden and Boston: Martinus NIJHOFF Publishers, 2008), 244.

¹² See: Jens Stilhoff Sörensen, ‘Intervention and Statebuilding in Kosovo’, in Routledge Handbook of International Statebuilding, ed. David Chandler and Timothy D. Sisk (London: Routledge, 2013); See note 9 above.

¹³ Marc Weller, ‘The Rambouillet Conference on Kosovo*’, International Affairs no. 2 (1999): 211–51; and Carsten Stahn, ‘Constitution Without a State? Kosovo Under the United Nations Constitutional Framework for Self-Government’, Leiden Journal of International Law 14, no. 3 (2001): 531–61.

¹⁴ Weller, ‘The Rambouillet Conference on Kosovo*’.

¹⁵ Alex Bellamy, ‘Kosovo and the Advent of Sovereignty as Responsibility’, Journal of Intervention and Statebuilding 3, no. 2 (2009): 163–84.

¹⁶ Kofi Annan, ‘Two Concepts of Sovereignty’, The Economist, September 18, 1999.

¹⁷ Joanne Wallis, Constitution Making during State Building (New York: Cambridge University Press, 2014), 2.

¹⁸ Angela Banks, ‘Challenging Political Boundaries in Post-Conflict States’, University of Pennsylvania Journal of International Laws 29, no. 1 (2007): 105–68.

¹⁹ Jennifer Widner, ‘Constitution Writing in Post-Conflict Settings: An Overview’, William & Mary Law Review 49, no. 4 (2008): 1513–41.

²⁰ Ulrich K. Preuss, ‘Perspectives on Post-Conflict Constitutionalism: Reflections on Regime Change Through External Constitutionalization’, New York Law School Law Review 51, no. 3 (2006): 468–94; and Samuels Kirsti, ‘Post-Conflict Peace-Building and Constitution-Making’, Chicago Journal of International Law 6, no. 2 (2006): 663–82.

²¹ See: Markus Böckenförde, ‘A Practical Guide to Constitution Building: Decentralised Forms of Government’, (Stockholm: International Institute for Democracy and Electoral Assistance, 2011); Vibeke Wang, Astri Suhrke and Elling N. Tjønneland, ‘Governance Interventions in Post-War Situations: Lessons Learned’, (Chr. Michelsen Institute, 2005); and Kirsti, ‘Post-Conflict Peace-Building and Constitution-Making’.

²² John Ikenberry, After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order after Major Wars (Princeton and Oxford: Princeton University Press, 2001), 31.

²³ Charlotte Fiedler, ‘Why Writing a New Constitution After Conflict can Contribute to Peace’, Briefing Paper, no.11 (Bonn: Deutsches Institut für Entwicklungspolitik (DIE), 2019).

²⁴ Kirsti, ‘Post-Conflict Peace-Building and Constitution-Making’, 664.

²⁵ Lakhdar Brahimi, ‘State Building in Crisis and Post-Conflict Countries’, in Global Forum on Reinventing Government (Vienna: Austria, 2007).

²⁶ Samuels, ‘Postwar Constitution Building Opportunities and Challenges’, 191.

²⁷ See: Arato, ‘Interim Imposition’; Arato, The Adventures of the Constituent Power Beyond Revolutions; and Andrew Arato, Constitution Making Under Occupation the Politics of Imposed Revolution in Iraq (New York: Columbia University Press, 2009).

²⁸ Arato, ‘Interim Imposition’, 27.

²⁹ Arato, Constitution Making Under Occupation the Politics of Imposed Revolution in Iraq, 258.

³⁰ Andrew Arato, Post Sovereign Constitution Making (New York: Oxford University Press, 2016), 11.

³¹ IDEA/International Institute for Democracy and Electoral Assistance, ‘Interim Constitutions in Post-Conflict Settings’, Discussion Report (Stockholm: Sweden, 2017), 5.

³² John McGarry, Brendan O’Leary, and Richard Simeon, ‘Integration or accommodation? The enduring debate in conflict regulation’, in Constitutional Design for Divided Societies: Integration or Accommodation, ed. Sujit Choudhry (New York: Oxford University Press, 2008).

³³ Carnegie Commission on Preventing Deadly Conflict, ‘Preventing Deadly Conflict: Final Report’, (Carnegie Corporation of New York, 1997), 100.

³⁴ Roland Paris and Timothy Sisks, ‘ParisIntroduction’, in The Dilemmas of Statebuilding: Confronting the Contradictions of Postwar Peace Operations, ed. Roland Paris and Timothy Sisk (London: Routledge, 2009), 14.

³⁵ UNSC Resolution 1244, Adopted by the Security Council at its 4011th meeting, on June 10, 1999, point 11.

³⁶ Arato, Constitution Making Under Occupation: the Politics of Imposed Revolution in Iraq, 258.

³⁷ Blerim Reka, UNMIK as an International Governance in Post-War Kosovo: NATO’s Intervention, UN Administration and Kosovar Aspirations (Skopje: Logos A, 2003).

³⁸ Hannah Lerner, Making Constitutions in Deeply Divided Societies (New York: Cambridge University Press, 2011), 18.

³⁹ Jens Narten, ‘Post-Conflict Peacebuilding and Local Ownership: Dynamics of External – Local Interaction in Kosovo under United Nations Administration’, Journal of Intervention and Statebuilding 2, no. 3 (2008): 369–90; and Werner Distler, ‘Authority in statebuilding as communicative practice. The Joint Working Group on the Constitutional Framework in Kosovo’, Democratization 24, no. 3 (2017): 463–80.

⁴⁰ Distler, ‘Authority in Statebuilding as Communicative Practice’, 464.

⁴¹ Reginald Austin, ‘Constitutional Reform Processes’, in Writing Autobiographies of Nations: A Comparative Analysis of Constitutional Reform Processes, ed. Sachs, Albie, Reginald Austin, Carlos Irahola, Patrick Lumumba, Luis Narváez-Ricaurte, Martin van Vliet (The Hague: Netherlands Institute for Multiparty Democracy, 2009).

⁴² Arato, ‘Interim Imposition’, 38.

⁴³ Preuss, ‘Perspectives on Post-Conflict Constitutionalism’, 470.

⁴⁴ UNMIK-UNHCR Press Briefing, March 7, 2001c.

⁴⁵ Weller, ‘Interim-Governance for Kosovo’, 258.

⁴⁶ UNMIK-OSCE-EU, ‘Press Briefing’, March 2, 2001a; and UNMIK’, ‘Press Briefing’, ‘Special Representative to the Secretary General Hans Haekkerup on Legal Framework Working Groups, March 6, 2001b.

⁴⁷ UNMIK, ‘Press Briefing’, ‘Press Conference by Chairman and Members of the Joint Working Groups (JWG) ON THE Legal Framework, April 13, 2001f.

⁴⁸ UNSC, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, June 7, 2001, S/2001/565.

⁴⁹ UNSC, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo.

⁵⁰ ICG, ‘Kosovo: Landmark Elections’, Balkans Report no. 120, (Pristina/Brussels, November 21, 2001); Iain King and Whit Mason, Peace at Any Price: How the World Failed Kosovo (Ithaca and New York: Cornell University Press, 2006); See note 11 above; and Distler, ‘Authority in Statebuilding as Communicative Practice’.

⁵¹ Michael Riegner, ‘The Two Faces of the Internationalized Pouvoir Constituant: Independence and Constitution-Making Under External Influence in Kosovo’, Goettingen Journal of International Law 2 no. 3 (2010): 1035–62.

⁵² Stahn, ‘Constitution Without a State?’, 543.

⁵³ Arben Hajrullahu, Paqja Afatgjate në Ballkanin Perëndimor përmes integrimit në BE [Long-term peace in the Western Balkans through EU integration] (Prishtinë: Konrad Adenauer Stiftung, 2015), 215.

⁵⁴ Distler, ‘Authority in Statebuilding as Communicative Practice’.

⁵⁵ CF/’Constitutional Framework for Provisional Self-Government in Kosovo’, (UNMIK Regulation 2001/9), Chapter 1.

⁵⁶ CF/’Constitutional Framework for Provisional Self-Government in Kosovo’, (UNMIK Regulation 2001/9), Chapter 9.

⁵⁷ Joseph Marko, ‘Independence without Standards? Kosovo’s Inter-ethnic Relations Since 1999’, European Yearbook of Minority Issues 5, no. 6 (2005): 225.

⁵⁸ Arato, Constitution Making Under Occupation the Politics of Imposed Revolution in Iraq, 69.

⁵⁹ UNSC Resolution 1244, 10 June 1999.

⁶⁰ Richard Caplan, ‘A New Trusteeship? The International Administration of War-torn Territories’, Adelphi Paper 341 (2002): 58.

⁶¹ Jens Narten, ‘Dilemmas of Promoting “Local Ownership”: The Case of Post-War Kosovo’ in The Dilemmas of Statebuilding: Confronting the contradictions of post-war peace operations, ed. Roland Paris and Timothy Sisk (London: Routledge, 2009); and David Harland, ‘Legitimacy and Effectiveness in International Administration’, Global Governance no.10 (2004): 15–19.

⁶² UNMIK Regulation No. 1999/1 ‘On the Authority of the Interim Administration in Kosovo’, (UNMIK/REG/1999/1 July 25, 1999).

⁶³ UNMIK Regulation No. 2000/47 ‘On the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo’, (UNMIK/REG/2000/47 August 18, 2000).

⁶⁴ Nilsson Jonas, ‘UNMIK and the Ombudsperson Institution in Kosovo: Human Rights Protection in a United Nations ‘Surrogate State’, Netherlands Quarterly of Human Rights 22 no. 3 (2004): 389–411.

⁶⁵ Arend Lijphart, ‘Consociational Democracy’, World Politics 21, no. 2 (1969): 207–25.

⁶⁶ Narten, ‘Post-Conflict Peacebuilding and Local Ownership’, 385.

⁶⁷ CF/’Constitutional Framework for Provisional Self-Government in Kosovo’; and Iain King and Whit Mason, Peace at Any Price.

⁶⁸ Fawn, Rick & Oliver P. Richmond, ‘De Facto States in the Balkans: Shared Governance versus Ethnic Sovereignty in Republika Srpska and Kosovo’, Journal of Intervention and Statebuilding 3, no. 2 (2009): 224.

⁶⁹ UNSC, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, (S/2004/348, April 30, 2004).

⁷⁰ Gëzim Visoka, ‘International Governance and Local Resistance in Kosovo: The Thin Line between Ethical, Emancipatory and Exclusionary Politics’, Irish Studies in International Affairs no. 22 (2011): 99–125.

⁷¹ ICB/International Commission on the Balkans, ‘The Balkans in Europe’s Future’, (Sofia: Centre for Liberal Strategies, 2005), 10.

⁷² ICB/International Commission on the Balkans, ‘The Balkans in Europe’s Future’, 18.