State Unity versus Social Pluralism: Contradictions in Kosovo’s Constitution and the Demystification of the “Internationalized Pouvoir Constituant”

Durim Berisha

Heinrich-Heine University, Düsseldorf

Kosovo’s state- and constitutional-building process represents a unique case of so-called “international state-building” because Kosovan politicians placed a non-legal document above the Kosovan Constitution. Agreement could not be reached in the United Nations on a solution for Kosovo’s future status that was acceptable to all parties involved. Despite this fact, the international community found a way to coerce the Kosovo-Albanians into accepting the pre-conditions set by the international community before declaring independence and adopting a new constitution. This post’s goal is to expound the contradictions within the Kosovan Constitution, which resulted from this “hybrid” constitution-making process involving local/national and international actors.

The Vienna negotiations between Kosovo and Serbia, on the final status of Kosovo, failed after the Special Envoy of the Secretary-General of the United Nations, Martti Ahtisaari, concluded that no solution, acceptable to all parties involved, could be found. The so-called ‘Ahtisaari Plan’ (formally known as the Comprehensive Proposal for the Kosovo Status Settlement), incorporated certain principles and mechanisms that had to be included in the Kosovan Constitution after declaring independence. After Russia and China opposed the Ahtisaari Plan, however, the United Nation’s Security Council failed to adopt a new resolution for Kosovo, and the Ahtisaari Plan was not formally endorsed by the United Nations. Nevertheless, Kosovo’s international position was and still is weak, so Kosovan politicians depend on the instructions and support of the USA, the UK, France, Germany and Italy. These western countries conditioned the recognition of Kosovo’s independence on the unilateral implementation of the Ahtisaari Plan. Therefore, the supra-constitutional position of the comprehensive proposal, as foreseen by Martti Ahtisaari, was secured. This was done by way not only of the Kosovan declaration of independence but also Art. 143 of the Constitution. The latter provision was repealed during constitutional reform after the end of the period of “supervised independence”, but the supra-constitutional position of the Ahtisaari Plan is still secure. This is as a result of the declaration of independence, in which it is permanently embedded as a condition for the recognition of independence by western countries. After the declaration of independence, the president of Kosovo appointed the Constitutional Commission to draft a new constitution. The Commission was composed of local and international members, with the latter having a substantive role and the former being responsible for informing the public about the work of the Commission. As it was drafted without the participation of the legislature and without any direct public consultation, the Commission’s draft was, in fact, a revised version of the Ahtisaari Plan.

Territorial Unity without National Elements

The wording of the constitutional norms reveals the different approaches that the local and international members of Kosovo’s Constitutional Commission had. The local members defined statehood as a priority, while the international members guaranteed not only the rights and freedoms of ethnic and religious minorities but also their privileged status.

The core of the Constitution, regarding the definition of the State, is copied mostly from the constitutions of France and Germany. Lacking knowledge about the historical process that a norm in a constitution represented, the local members of the Constitutional Commission proposed those which sounded meaningful to their vision of a sovereign, independent and indivisible state. Ultimately, the Republic of Kosovo has been defined as “unique and indivisible” (Art. 1 of the Constitution), inspired by the wording in the French Constitution. Bear in mind that the Kosovo-Albanians could request a union with the Republic of Albania or the Albanian-populated municipalities in southern Serbia, or the Serbian minority could request to join Serbia. For this reason, state unity is bound only to territorial aspects (through Art. 1 Par. 3 and Art. 2. Par.1 of Kosovo’s Constitution). Kosovo is further defined as a multiethnic society (Art. 3 par. 1) and as a state of its citizens (Art. 1 Par. 2), removing the national element as a state-building and state-defining one. If these were the only constitutional provisions that foresee the equality of all Kosovan citizens, there would be no contradiction between state unity and social pluralism; however, the Constitution, in contrast with France where French is the only official language, provides for the use of minority languages as official languages alongside Albanian. The ethnic element of social division has overcome the principle of social pluralism not only with regard to language but also by constructing the composition of constitutional institutions based on ethnic background. Therefore, Kosovo’s Constitution ambiguously overcomes the principle of state unity, leaving it only on a declarative level and only connected to state territory.

Case-law of the Constitutional Court

Kosovo’s Constitutional Court’s composition also reflects ethnicity-based elements because two of its nine judges have to represent Kosovo’s ethnic minorities. Until now, there has been no evidence of any ethnicity-based conflict in its work, making the Constitutional Court the only institution in which a multiethnic composition has not been an obstacle.

During the first decade of constitutional justice in Kosovo, two significant cases dealing with the multiethnic character of state and society came before the Court. The first of these was brought before the Court in 2010 under Art. 62 Par. 4 of the Kosovan Constitution. This article provides that a deputy-mayor who represents any ethnic minority has the right to refer to the Court a request for a constitutional review of municipal acts. In this case the Court held that Art. 7 of the Statute of Prizren was unconstitutional because the logos foreseen by this provision did not represent all ethnic groups living in the city and therefore violated Art. 3, 7.1, and 59 of the Constitution.

The second case dealing with the principles of state unity and pluralism was referred to the Court by the President of Kosovo. The President applied for constitutional review of an agreement between Kosovo and Serbia in terms of which an ‘Association of Serb Municipalities’ had to be established. The Court avoided reliance on the principle of state unity, deciding the matter, instead, on the basis of equality . Therefore, the Court did not use this opportunity to clarify how state unity and social/state pluralism ought to be reconciled.

Outcome

The concept of internationalized constitution-making has been presented in the last few years, by Kosovo-Albanian scholars, as a successful process. The Kosovo example, however, actually demonstrates the fragility of constitutional orders that have been designed under or through international influence or involvement. Local and international members of the Constitutional Commission avoided direct clashes during the drafting of the Constitution, not because of their similar approach, but based on their unequal positions. It is also clear from the Kosovo example that locals and international actors can differ in their reading and understanding of the constitutional system: while the Kosovo-Albanians saw Art. 3 of the Constitution as a guarantee that Kosovo is by definition non-ethnic, international actors used the article’s vague formulations to inject, on the constitutional level, so-called ‘positive discrimination’ in favour of ethnic minorities. Another problem with Kosovo’s constitution-making process is the fact that the original version of the Constitution was drafted in English, but the Assembly of Kosovo adopted the Albanian version, which emerged with substantial defects caused by translation.

Furthermore, the reception (copy) of Kosovo’s constitutional provisions from Western countries resulted in completely different outcomes compared to the countries from which the norms originated. For instance, the French nation was built on the principle of unity, not only with respect to territory but also with respect to national unity. In contrast to the situation in France, the identification of Kosovo as a country of its citizens resulted in Kosovo no longer being a nation-state. The Constitutional Council in France ruled against a special quota for women during elections and against the ratification of international agreements that obliged France to use minority languages. In contrast, in Kosovo, 30% of the Assembly members have to be women and special representation for ethnic minorities is guaranteed in the Assembly, government, judiciary, and other constitutional institutions.

An objective approach to the analysis of the application—not only the wording—of constitutions drafted under international influence reveals that they create not just contradictory constitutional norms, but also dysfunctional societies and states. At least, that is what such an exercise reveals in the case of Kosovo. Most notably, while the privileged status of minorities in Kosovo was meant to guarantee their integration, the Serbian minority has used it to block the legislative and executive branches from functioning normally. Specifically, some Serbian politicians in Kosovo consider themselves representatives of the Serbian government rather than a part of Kosovan institutions (even though they were elected to the Assembly or hold positions in the cabinet). These politicians have repeatedly misused the “double majority principle” found in Articles 81, 96.5, 108.9, 114.3 and 144 of the Constitution. According to these provisions, the approval of certain laws and constitutional amendments requires not only a majority of all members of parliament but also a majority of votes from members parliamentary who represent ethnic minorities. This principle denies Kosovo’s declarative state unity and turns it into that which Kosovo-Albanians never wanted: the “Bosnization of Kosovo,” with the ethnic element becoming a state-building element.

Durim Berisha is a PhD candidate and Johannes-Rau Scholar at the Institute of German and International Party Law and Party Research (Heinrich-Heine University Düsseldorf), and a former legal advisor to the Constitutional Court of Kosovo.

Suggested citation: Durim Berisha, “State Unity versus Social Pluralism: Contradictions in Kosovo’s Constitution and the Demystification of the ‘Internationalized Pouvoir Constituant’” IACL-IADC Blog (12 December 2019) https://blog-iacl-aidc.org/2019-posts/2019/12/12/state-unity-versus-social-pluralism-contradictions-in-kosovos-constitution-and-the-demystification-of-the-internationalized-pouvoir-constituant