Dependent on Arrival: Kosovo's Status Settlement and the New Constitution

Although Kosovo declared its independence on February 17, 2008, international recognition of its newfound statehood may have come at a high price. During the past eight years of talks and negotiations on Kosovo’s final status, a great deal of consideration was given to regional, continental, and interna-tional concerns. Unfortunately, not nearly as much deliberation went into providing for a functional, stable, and democratic Kosovar constitution and state. As Kosovo now asserts itself as the newest member of the international community, the consequence of the internationally led process, which resulted in the development and acceptance of the Ahtisaari plan, may well be paralysis and destabilization of Kosovo’s new constitution and state.

Introduction

On March 26, 2007, Marti Ahtisaari, UN Special Envoy for Kosovo, released his long-awaited final recommendation for Kosovo’s status to the UN Security Council (UNSC), with a statement of support from UN Secretary-General Ban Ki-moon. The recommendation, including the “Comprehensive Proposal for the Kosovo Status Settlement” (Settlement) discussed below, was effectively swept aside by Russian veto threats in the UNSC. However, many proponents of Kosovar independence, including the United States, insisted that the provisions laid out in the Set-tlement survive with or without a new UNSC resolution. Indeed, the United States encouraged the government of Kosovo to begin legislating many of the provisions in the Settlement and to model its constitution on the Settlement’s language long before its declaration of independence. Recently, the government of Kosovo released a draft Constitution for public comment, which included the language from the Ahtisaari Settlement discussed below and the stipulation in Article 146 that the Settlement shall be the final authority in Kosovo. Thus, while the Settlement did not come before the UN as a resolution, its provisions will likely still form the foundation of the new Kosovar constitution.Coming after more than a year of intensive negotiations be-tween Kosovar and Serbian officials, and after almost eight years of UN administration of Kosovo, Ahtisaari’s “Report of the Spe-cial Envoy of the Secretary-General on Kosovo’s future status” (Report) points to Kosovo’s years of uncertain political status as the primary reason for its underdeveloped financial institutions, lack of foreign investment, slowness to integrate fully into the regional economy, and political instability. Ahtisaari’s report concludes that reintegration of Kosovo into Serbia is no longer a viable option. Instead, the Report recommends that Kosovo be given transitional independence “with international supervi-sion.”Considering the long period of UN and NATO control in Kosovo, it is not surprising that Ahtisaari’s plan relies upon transitional powers and international supervision. The interna-tional community and Kosovars alike expected broad supervi-sory roles for foreign powers throughout the transitional period. What is surprising—indeed even alarming—is the degree to which the Settlement mandates and enshrines these supervisory, transitional, and ultimately subjugating roles as permanent pro-visions in the new Kosovar Constitution.

In this article, I argue that Kosovar independence and sovereignty is fatally under-mined because Ahtisaari’s plan prioritizes political consensus among international power brokers, particularly members of the UNSC and Serbia, before lasting independence and success for the new Kosovar state. The purpose of this article is to identify how the Settlement’s required constitutional provisions may seriously threaten the viability of Kosovo’s independence and sovereignty.Following an overview of the Ahtisaari plan to settle the is-sue of Kosovo’s status, Part I of this article examines the provisions that give the Settlement indefinite and incontestable preeminence over the Kosovo constitution. In this section, it is asserted that these mandated provisions constitute a kind of “Settlement Supremacy Clause,” effectively binding Kosovo’s future constitution to a transitional, and internationally imposed, status plan.

Part II addresses the Settlement’s endowment of vast, invasive powers to foreign authorities, thus paving the way for an unparalleled level of international infiltration into the most fun-damental constitutional powers of the Kosovar state. While many of these powers are transitional and temporary, others are embedded into the framework of the constitution. This section pays particular attention to the constitutionally ingrained powers given by the Settlement to the International Civilian Representative, foreign judges on the Kosovo Constitutional Court, and the Republic of Serbia.Part III illustrates the inherent difficulty of amending the constitution within the provisions of the Settlement, which fatally entangles both legislative and constitutional amendment procedures with internal ethnic politics and essentially ties the hands of future Kosovar reformers. Because so much of Kosovo’s constitution has been the result of foreign imposition, it is argued that Kosovo citizens should have liberal amendment provisions to enable them to modify their social contract.This article concludes that the Settlement’s mandates for the Kosovo’s constitution, as currently proposed, will likely lead to constitutional paralysis and internal dysfunction, rendering the new Kosovar state “dependent on arrival.”

Background

In November 2005, UN Secretary-General Kofi Annan appointed Marti Ahtissari as special envoy for the Kosovo status process. Annan’s appointment of Ahtisaari came after years of talks and diplomacy on the issue of Kosovo’s future, which had failed to produce a consensus on how to proceed. For over a year, Ahtisaari held negotiations with Kosovar and Serbian officials, with the backing of the UN secretariat and the governments of the United States, the United Kingdom, France, Germany, Italy, and Russia, collectively known as the Contact Group. However, ne-gotiations ended when, as Ahtisaari notes in his Report, irreconcilable differences between the Serbian and Kosovar sides made continuation of discussions futile. It bears noting that many diplomats involved with the negotiations have agreed that the Serbian delegation often refused to meet with their Kosovar counterparts and employed multiple stall tactics to prolong and disrupt the status talks. Ahtisaari attempted to bridge these divides and even delayed the release of his recommendation on a few occasions, waiting for the right political moment to reveal his plan. It was only after a constitutional referendum in Serbia in October 2006 and the conclusion of passionate, Kosovo-centered Serbian elections in January 2007 that Ahtisaari finally unveiled his Report and Settlement.Ahtisaari stated in his Report that delaying the resolution of Kosovo’s status and perpetuating the consequent political and economic uncertainty would lead only to further stagnation and instability. However, the Report placed equal emphasis on Kosovo’s “capacity to tackle the challenges of minority protection, democratic development, economic recovery, and social reconciliation on its own.” Ahtisaari recommended that “Kosovo’s independence, and its fulfillment of the obligations set forth in [the] Settlement proposal, be supervised and sup-ported for an initial period by international civilian and military presences.” Ahtisaari knew well that the international community would demand a genuine status resolution and that most states would insist upon some form of independence. He also understood that some key international players would object to anything that resembled an unconditional independence for Kosovo or abandonment of Kosovo Serbs. Ahtisaari’s plan is therefore a political compromise that seeks to satisfy to some degree the demands of competing sides.A serious drawback to this compromise is that outside interests were given precedent, and ultimately prevailed, over Kosovar interests. Rather than giving serious consideration to long-term community and group interests, Ahtisaari’s plan will largely allow international politics to dominate Kosovo’s future. Ahtisaari’s approach might achieve something of a political compromise at the international level, but it also places Kosovo on a dangerous trajectory toward dysfunction and turmoil. Al-though leaders from around the world have widely supported the Ahtisaari plan as the best way of achieving a politically ex-pedient solution to the Kosovo status problem, they still express grave reservations about some of the “many imperfections” in the Settlement.

Part 1: The Supremacy of the Settlement

Ahtisaari asserts in his Report that supervised independence is the only option for a viable, sustainable, and stable future Kosovo. Throughout both the Report and Settlement, Ahtisaari emphasizes the importance of building successful state struc-tures based on democratic principles and transparency. Ironi-cally, the Settlement’s required constitutional provisions under-mine these very goals.Declaring the Settlement's Supremacy. One of the preeminent norms of national sovereignty is the right of a state to develop its own laws, and in particular its own con-stitution, which is intended to serve as a state’s founding docu-ment and basis for all subsequent laws. This norm relies not only on the principles of public participation and democracy, but also on the very idea of a viable and legitimate social contract. Recognizing that Kosovo would need its own constitution im-mediately after suspension of the UN’s Interim Administration Mission in Kosovo (UNMIK), Ahtisaari’s Report and Settle-ment instruct the Kosovar leadership to write and approve a new constitution within 120 days of the Settlement’s entry into force. However, much of the Constitution’s language and ma-terial is already mandated in Annex I to the Settlement, and was thus intended to be out of the hands of the Kosovars. Further-more, Ahtisaari’s proposal consistently maintains that the Set-tlement’s provisions be given supra-constitutional legal status, “taking precedence over all other legal provisions in Kosovo,” including the Constitution. By first taking much of the power away from Kosovars to write their own constitution and then insisting on the constitution’s limitless and perpetual subjuga-tion to the foreign Settlement, the Ahtisaari plan effectively un-dercuts the legitimacy of the document it means to empower.Were these requirements for Kosovo’s Constitution clearly temporary, created only for the transitional period toward full independence, there would be less reason for concern. However, the Settlement creates a process and a document that does not distinguish between temporary and permanent provisions. Arti-cle 10 of the Settlement’s General Principles outlines the process, composition, and authority of the Constitutional Commission charged with drafting and approving a constitution within 120 days. Compared with other recent models, this timeline is un-reasonably short, and denies Kosovars sufficient opportunity to write the kind of constitution they want or achieve the public participation that will be necessary for long-term national viabil-ity. The Settlement also empowers the International Civilian Representative (ICR) to certify that the eventual draft is in ac-cordance with the Settlement before its introduction to the Kosovo Assembly. In other words, a single individual is given uncontestable authority to accept or reject the Kosovar draft con-stitution if he or she deems it incompatible with the Settlement’s requirements.Foremost on the ICR’s checklist for approving the draft con-stitution will likely be the inclusion of the required provision in Article 1.1 of Annex I:The Constitution of Kosovo shall be consistent in all its provi-sions with this Settlement, and be interpreted in accordance with this Settlement; in the event of a conflict between the pro-visions of the Constitution and the provisions of this Settle-ment, the latter shall prevail.By its terms, Article 1.1 creates a kind of “settlement supremacy clause,” with no qualification for future changes in condition and no indication of temporary status. Long after Kosovo has moved from transitional statehood to becoming a fully sovereign member of the international community, this provision will still bind the Kosovar Constitution to the “temporary” Settlement. Article 1.1, accentuated by the many other supporting and en-hancing provisions, thus presents a number of long-lasting chal-lenges to Kosovo’s independence and sovereignty.Enforcing the Settlement's Supremacy. In order to reinforce the central Settlement supremacy provision in Article 1.1, the Settlement obligates compliance in upholding its terms from both the Constitution and the Kosovar people. Article 11 of Annex I mandates: The Constitution shall also provide that all authorities in Kosovo shall give effect to decisions or acts of the international authority mandated to supervise implementation of the Set-tlement and shall abide by all of Kosovo’s obligations under the Settlement.According to this article, even if the international authority acts in a way that violates Kosovo law, the Settlement requires constitutional acquiescence. As in the case of Article 1.1, Article 11 does not leave room for abandonment of this provision after the transitional stage is over. If Kosovars do consider amending their law or Constitution in the future, they will be substantially limited by the Settlement in the kinds of changes they will be able to enact. Article 3.9 of Annex I specifically prohibits “any proposal contradicting any provision of this Settlement . . . submitted to a referendum.” This article would limit any changes to aspects wholly outside the scope of the Settlement. Furthermore, Kosovar leaders would have to consider Article 6.1 of Annex IX before seeking to amend any laws in Kosovo. This article provides that “failure by the Kosovo authorities” to cooperate with the ICR in implementing all aspects of the Settlement, including the constitutional requirements, “shall constitute a breach of the terms of this Settlement.” A breach of an agreement is a serious violation of inter-national law which Kosovar leaders would likely want to avoid, even at the expense of making needed reforms of their own law.If Kosovo is to become the viable, sustainable, and independent state that Ahtisaari intends, its founding document must allow for change and growth, even if this means eventually outgrowing the terms of the transitional Settlement. The Ahtisaari plan, however, fails to deliver these requisites. Not only does the Settlement prohibit any possible changes to its terms, but it also requires the Constitution to indefinitely preserve its supremacy over all Kosovar law. Proponents of the Settlement may argue that the Settlement administers over a transitional process and that its terms are reflective of international norms. That may be generally true, but not in regard to the constitu-tional provisions. The Settlement places unparalleled burdens on the Kosovar Constitution and does not distinguish between the temporary provisions and the permanent provisions.

Part II: Empowerment of Foreign Authorities

In addition to expressly granting the Settlement legal supremacy over the Constitution, Ahtisaari’s plan likewise grants legal and political power over the Constitution to a number of foreign enti-ties. Expanding upon the Bosnian model, the Settlement endows foreigners with sweeping powers and rights. While some of these powers are transitional and temporary, others are required to be permanently ingrained into the fabric of the Kosovar Constitution. Of particular concern are the rights and powers given to the ICR, foreign judges on the Kosovo Constitutional Court, and the Republic of Serbia.The International Civilian Representative (Bosnia Redux). In creating the ICR in the Settlement, Ahtisaari largely follows the approach of the High Representative (OHR) from the Dayton Peace Agreement. The OHR was intended to supervise the implementation of the peace agreement in Bosnia and facilitate compliance by the parties with its terms. For the past twelve years the OHR has pursued this ambiguous mandate, with plans to finally withdraw from Bosnia some time in 2008. Most experts agree that the international community’s experiment in nation building in Bosnia has been at best haphazard and at worst a complete failure. Some have even specifically warned of the dangers in following the Bosnian model with Kosovo. But the Settlement’s ICR powers extend much further than the OHR’s did in Bosnia.Article 11 of Annex II of the Report illustrates the almost limitless powers of the ICR:The International Civilian Representative . . . shall be the ulti-mate supervisory authority over implementation of the Settlement. The International Civilian Representative shall have no direct role in the administration of Kosovo, but shall have strong corrective powers to ensure successful implementation of the Settlement. Among his/her powers is the ability to annul decisions or laws adopted by Kosovo authorities and sanction and remove public officials whose actions he/she determines to be inconsistent with the Settlement. The mandate of the Inter-national Civilian Representative shall continue until the Inter-national Steering Group determines that Kosovo has imple-mented the terms of the Settlement.

Just as the Settlement supersedes the Constitution in legal authority, so too do the ICR’s decisions as steward of the Settle-ment trump the Constitution when they are in conflict. If the government of Kosovo enacts a law that the ICR considers to be in conflict with the Settlement, the ICR can strike down or amend the law without contest. This same principle applies to all constitutional amendments. Granting such vague and broad powers to a foreign entity without legal review or any sort of due process undermines the very idea of constitutional govern-ment and state sovereignty.Under the Dayton Peace Agreement, the OHR’s powers were separated from the Constitution and left out of its lan-guage, presumably to demonstrate the transitional nature of the office. However, in the Settlement, the ICR is expressly cemented into the foundation of the Constitution with its role as appointer of foreign judges for the Constitutional Court and supreme su-pervisor for the terms of the Settlement. The ICR is also implic-itly recognized by the Constitution through the Settlement’s endowment of authority to annul and amend democratically made laws and sanction and remove democratically elected officials. But like the OHR, the ICR’s tenure lasts as long as the International Steering Group deems it necessary, without consultation with Kosovo authorities or consent from the Kosovars them-selves. If the ICR operates at all like the OHR has in Bosnia, Kosovo could be in for a long, tumultuous transition and a pro-longed dependency on international supervisors.Infiltrating the Judiciary. Just as the Settlement follows the Bosnian OHR model by granting broad constitutional powers to the ICR, it follows the Dayton Accords’ Bosnian Constitutional Court model by allot-ting reserved seats on the court for foreign judges. Bosnia and Herzegovina is the only state in Europe to constitutionally re-quire reservation of seats on the Constitutional Court for for-eigners—a result of the Dayton Peace Agreement ending the protracted conflict with Serbia in the early 1990s. Ahtisaari’s plan takes the Bosnian model one step further. In Article 6.1.3 of Annex I, the Settlement dictates that three international judges shall be appointed by the President of the European Court of Human Rights, upon consultation with the International Civilian Representative. Whereas the Bosnian Constitution, already dis-tinctive in its apportionment of constitutional court seats to for-eign judges, insists upon consultation with its domestic presi-dency, the Settlement requires consultation with only a foreign actor, the ICR. This requirement seems to directly conflict with the express goal of creating an independent judiciary laid out in Ahtisaari’s Report. Combined with a lack of constitutional means to opt out of this paternalistic provision, Article 6.1.3 pre-sents a serious challenge to Kosovo’s judicial independence and state sovereignty; it does not achieve judicial independence and self-rule, but rather ensures prolonged patronage and depend-ence.The Settlement also forces the courts to ration seats accord-ing to ethnicity. The provision is not inherently unique or espe-cially threatening to Kosovo’s independence, as many states have reserved seats for their minorities to ensure equal represen-tation and inspire confidence for minorities in their states’ judi-cial systems. In fact, many experts agree that the Ahtisaari plan correctly identifies relations with its minority groups, particu-larly the Serbs, as the primary challenge for Kosovo. However, many of the same problems that exist for the Constitutional Court are present here. First, the Settlement imposes the court ratio structures on the Kosovars without their consent. Second, the Settlement does not provide a constitutional method for changing the ratios in the future if the ratios no longer make proportional sense. Since the ratios are part of the Settlement’s mandated terms, they are included under the umbrella of una-mendable provisions, with no expiration date or means for chal-lenge.Facilitating Serbian Interference. While the influence of foreigners on Kosovar courts may be a subtle constitutional intrusion, the Settlement’s provisions re-quiring the Constitution to promote and protect Serbia’s right to associate and interact with Serbian minorities in Kosovo, includ-ing in local governance structures, are anything but subtle. Ahti-saari rightly points out in his Report that “a history of enmity and mistrust has long antagonized the relationship between Kosovo Albanians and Serbs . . . exacerbated by the actions of the Milosevic regime in the 1990s.” Ahtisaari’s recommenda-tion, given this history of tension and the resulting impasse in negotiations between the two sides, implies that a return to Serbian rule for Kosovo would lead only to more violence and dis-order. It is interesting, then, that the Settlement carves out such expansive rights for Serbia in Kosovar affairs. It is understand-able that Ahtisaari included such provisions in the Settlement given the reservations expressed by some UN members, particu-larly on the Security Council, about both stripping Kosovo entirely from Serbia and leaving Kosovo’s Serb population precari-ously unprotected. However, Ahtisaari once again took political expediency too far, by endowing Serbia with rights and powers over Kosovo instead of focusing on the rights of Kosovar Serbs within Kosovo.The majority of the provisions in the Settlement that create rights for Serbian involvement in Kosovo are made under the guise of local self-government and decentralization. In Article 6.3 of the General Principles, devolved municipalities are given the express right to “cross-border cooperation on matters of mu-tual interest.” This concept of power sharing is developed further in Annex III, principally in Article 10. While Article 10 pro-vides some safeguards to protect against blatant violation of the municipal-Serbian relationship, it also entitles the municipalities to reach out to Serbia independently for a number of reasons, including for financial and technical support, within their broad range of competencies.Perhaps most troubling for Kosovar independence is the provision in Article 11 of Annex III, which entitles municipalities in Kosovo to “receive financial assistance from Serbia.” Like the cooperative restrictions in Article 10, Article 11 requires that all funds from Serbia be reported, transparent, and within the stated purpose of exercise of municipal competencies. But the threat to Kosovo’s independence with Article 11 is in the created conflict of loyalty and allegiance. Those municipalities that receive financial assistance from Serbia and rely upon Serbian support may lose their attachment to Kosovo. Considering the difficulties between Kosovo and Serbia north of the Ibar river, this loss may lead to further tension in the northern municipali-ties, especially in Mitrovica.Much like the challenges with the courts and with the pow-ers of the ICR, the challenges of formalized Serbian interference have been constitutionalized by the Settlement. As a constitu-tional provision, Article 8.4 of Annex I thus mandates the right of cross-border cooperation for municipalities in a way that will be virtually impossible to amend. Ahtisaari’s attempt to pacify Serbia and its allies and placate the international community’s desire for unanimity appears once again to come at the expense of a united and functional Kosovo.

Part III: Constitutional Amendment Procedures

It is evident that the Settlement mandates a flawed and poten-tially dysfunctional constitution for Kosovo—one more condu-cive to international political consensus than a viable and de-mocratic independent state. However, many of the problems outlined here could be solved if the Kosovars were given liberal amendment provisions to enable the future modification of their constitution. Unfortunately, the Settlement entangles internal ethnic politics with constitutional amendment procedures, thus making subsequent amendments to the constitution extremely difficult and unlikely.Constitutional Amendment Procedures. As mentioned previously, because the Settlement expressly pronounces its supremacy over the constitution and allows the ICR to strike down laws and amendments that might conflict with Settlement provisions, the amendment process is arduous from the outset. Article 3.9 of Annex I even prohibits referenda for anything the ICR deems to be contradictory to a provision of the Settlement. But Article 10 of Annex I would make constitu-tional modification nearly unattainable:Any amendment to the Constitution shall require the approval of two-thirds of the members of the Assembly including two-thirds of the Assembly members holding seats reserved or guaranteed for the representatives of Communities that are not in the majority in Kosovo.Even the flawed Dayton Peace Agreement did not require double super-majorities for amendments to the constitution of Bosnia. Of course, the double super-majority requirement is complicated further in Kosovo by the compounding of already tense ethnic politics with what amounts to a minority veto. Comprising just 10 percent of the current Kosovar popula-tion —a number that may decrease further in the future—the minority members of the Assembly are given a practical stran-glehold over the constitutional amendment process as dictated by the Settlement.Interestingly, adoption of the constitution, which the UN and the international community has a vested interest in seeing quickly come to pass, does not require the same stringent accep-tance by the minority population in Kosovo. For adoption of the constitution, the Settlement mandates a two-thirds super-majority of the Assembly—just as the amendment process does—but only an “appropriate consultation” with the minority population instead of another two-thirds requirement. Regret-tably, the difference in process between adoption and amend-ment of the constitution further suggests a greater concern on the part of the international community for achieving a political solution for Kosovo than for achieving a sustainable and func-tional constitution.Legislative Procedures. Finally, the Settlement requires the constitution to establish double majority provisions for the adoption, amendment, or re-peal of laws ranging from elections to education to municipal powers. A majority of present and voting members of the As-sembly from minority communities, who are guaranteed at least 20 out of 120 seats in the Assembly, must join a majority of the whole Assembly in order to pass, change, or eliminate laws on a broad list of topics. Like the amendment process, the legislation process could be permanently bound to ethnic strife and compe-tition, increasing the likelihood of conflict.For a constitution that has had, and will continue to have, so many foreign impositions, it is imperative that Kosovars be af-forded the liberty to modify their social contract as they see fit. Understandably, the international community has erected struc-tures to ensure protection and participation of minorities in Kosovo and to provide a framework for transition to full inde-pendence. But tying amendment and legislative procedures to ethnicity may further strain Kosovo’s majority-minority relations and stall legal and political progress.

Conclusion

Ahtisaari rightfully concludes in his Report that as reintegration into Serbia or continued international administration for Kosovo are now both untenable options, the only choice for a politically stable and economically viable Kosovo is independence—to be supervised initially through its transitional stage. However, where Ahtisaari and the international community go awry is in undermining Kosovo’s future political and economic success by tying its constitution and future amendments and laws to transitional provisions. The international community should learn from the problematic Bosnian experience in state building, in-stead of repeating the failures of Dayton.The Settlement dictates a large portion of Kosovo’s fundamental constitutional elements, in spite of its claim to the contrary. While most of the material required by the Settlement for inclusion in Kosovo’s constitution is uncontroversial and nearly universal in practice, even if paternalistically imposed, the Settlement’s weaknesses as described in this article are serious enough to jeopardize the success of the whole document and the future of the Kosovar state. Kosovo’s legal foundations may be compromised from the beginning by holding the Settlement in-contestably and indefinitely superior to the constitution. Kosovo’s political and judicial structures may be undermined from the outset by the allowance of excessive foreign involve-ment in fundamental areas of governance. Finally, Kosovo’s abil-ity to evolve, progress, and transition may be irreparably handi-capped by the placement of high hurdles in front of its government and people for amending their laws and constitu-tion. While Kosovo has released its draft constitution and in-cluded the Ahtisaari provisions, it is not clear how strictly Arti-cle 146’s requirement of submission to the Settlement may be interpreted.The implied and express object of Ahtisaari’s plan, like most endeavors in state-building, was to lay the foundations for Kosovo to become an independent, functional state based on the rule of law. In many ways, the Settlement accomplishes that aim. But in other ways, particularly in the area of constitutional development, Ahtisaari’s plan will likely lead only to further dysfunction and paralysis—leaving the new Kosovar state “dependent on arrival.”