NEGOTIATING KOSOVO’S FINAL STATUS Lulzim Peci, Ilir Dugolli, Leon Malazogu* 1. The current situation June 10th 1999 marks the beginning of a new stage for Kosovo. With confirmed withdrawal of the forces of the Federal Republic of Yugoslavia and the entry of KFOR, the UN Security Council adopted the Resolution 1244 (hereinafter: UNSCR 1244)1, replacing thus the existing legal order with a new one. In general, Kosovo has experienced a very wide range of constitutional solutions. Since the end of WWII and until the last constitution of the Socialist Federal Republic of Yugoslavia (SFRY) in 1974, we have seen an enhancement of powers of Kosovo (as one of the two autonomous provinces). The federal constitution of 1974 introduced significant changes to the internal organization of the SFRY, decentralizing key areas of governance. Under these arrangements, the Socialist Autonomous Province of Kosovo (SAPK) “had equal representation within the supreme commanding body of the federation, a collective presidency of eight, comprised of a member of each federal unit of Yugoslavia. All representatives enjoyed the right to veto any decision over which the collective body had authority, including those relating to security2. 1 United Nations Security Council Resolution 1244/99. Available: http://www.unmikonline.org/misc/N9917289.pdf (last visited: 20 February 2006) 2 Ilir Dugolli & Lulzim Peci, Enhancing civilian management and oversight of the security sector in Kosovo, KIPRED and SaferWorld, November 2005. p.5. Available online at: http://www.kipred.net/UserFiles/File/SecSectorManagement.pdf (last visited: 15 February 2006). This positive evolution came to an abrupt end in 1989 when the autonomy was revoked. Kosovo came under direct rule by Belgrade and its cronies, an entire decade characterized by gross and systematic violations of human rights. Continuous oppression and fruitless efforts of civil disobedience led to an escalation and to the armed conflict in 1998-9. Post-war governance in Kosovo also underwent continuous osmosis. The chairing structure of Kosovo experienced permanent improvisations and a number of short-term adjustments. With this aspiration and in order to share responsibility, the Joint Interim Administrative Structure (JIAS) was established in December 1999. JIAS was composed of two bodies: Kosovo Transitional Council (KTC) and Interim Administrative Council (IAC), both with consultative character with Kosovo-wide oversight. In addition, there were 20 administrative departments co-chaired by an international and a local co-head, whose responsibilities included administration, service delivery and revenue collection. With local and national elections held in 2000 and 2001 respectively, legitimate institutions at all levels emerged. Still, UNMIK retained more extensive authority than any other UN mission of similar kind. The UN vested "all legislative and executive authority with respect to Kosovo, including the administration of the judiciary" in UNMIK itself and the Special Representative of the Secretary-General (SRSG)3. The SRSG remained the highest civil official and has been heading the international civil administration and the entire institutional hierarchy in Kosovo. Security structure on the other hand is split between KFOR and UNMIK Civilian Police (CIVPOL). The former is under the command of Commander of KFOR, responsible to the NATO HQ, while the latter, through Police Commissioner report to the SRSG. 2. “Creative ambiguity” of UNSCR 1244 and its implications Division of governance between indigenous and international institutions stems out of the peculiar diplomatic settlement reached at the close of the Kosovo conflict in 1999. This settlement was encapsulated by UNSCR 1244 adopted in June 1999. While the Resolution in question “includes a commitment to Yugoslavia’s sovereignty and territorial 3 EECR, Volume 9 Number 4, Fall 2000. New York University Law School and Central European University. Available online: http://www.law.nyu.edu/eecr/vol9num4/constitutionwatch/yugoslavia.html (last visited: 20 February 2006) Lulzim Peci, Ilir Dugolli, Leon Malazogu – Negociating Kosovo’s final status – Mars 2006 2 http://www.ceri-sciences-po.org integrity, it essentially created a UN protectorate in Kosovo”4. More importantly, the UNSCR 1244 was enacted under the Chapter VII of the UN Charter which does not concern democratic state-building, but threats to international peace and security. UNSCR 1244/99 and the subsequent Constitutional Framework for Kosovo of May 2001 established a limited framework for self-governance under substantial international (civilian and military) supervision. The ambiguous, or perhaps contradictory, mission of the international administration is summed up by UNMIK’s mandate under the Resolution in question to “promote the establishment of substantial autonomy and self-government in Kosovo”5. While the notion of ‘substantial autonomy’ offered a creative diplomatic solution six and a half years ago, it has, at least until recently, proved beyond successive international administrations to realize it on the ground6. The vague mandate of international administration has been stretched between two conflicting objectives, (a) substantial autonomy as provided by UNSCR 1244 and (b) state-building aspirations of the Kosovo’s elite and its overwhelming majority. This situation naturally had serious implications for the political security on the ground. Kosovo is still administered primarily under the authority of Chapter VII of the UN Charter in the name of pacifying a threat to international peace and security and less in terms of a genuine state-building, although most analysts and officials recognize that this is in fact occurring. In other words, immediate stabilization has superseded efforts of genuine institution-building and empowerment of the local citizenry. 4 EECR, Volume 9 Number 4, Fall 2000. New York University Law School and Central European University. Available online: http://www.law.nyu.edu/eecr/vol9num4/constitutionwatch/yugoslavia.html (last visited: 20 February 2006). 5 United Nations Security Council Resolution 1244/99. Available online: http://www.unmikonline.org/misc/N9917289.pdf (last visited: 20 February 2006) 6 As early as 2001 the Independent International Commission on Kosovo concluded that the effect of ‘reserved powers’ in the hands of the SRSG meant that, “instead of the substantial self-government promised the Kosovars under Resolution 1244, they will instead get very limited autonomy”. Independent International Commission on Kosovo, ‘The Follow-Up to the Kosovo Report - Why Conditional Independence? (IICK, 2001), p. 20. Lulzim Peci, Ilir Dugolli, Leon Malazogu – Negociating Kosovo’s final status – Mars 2006 3 http://www.ceri-sciences-po.org 3. Building legitimate institutions “While UNSCR 1244 assigns ultimate responsibility for Kosovo to the UN administration, it also requires that the UN develop ‘provisional institutions for democratic and autonomous self-government’ and progressively transfer its administrative responsibilities to the local institutions”7. Institutions exercised only a handful of “transferred” responsibilities which under the Constitutional Framework for Provisional Self-government were not placed under the domain of “reserved responsibilities” for the SRSG and UNMIK8. There has been a huge political and moral investment by both international structures involved in Kosovo and political parties in organizing free and fair elections. In 2000 the first free elections in Kosovo were held. These were elections for municipal representatives and they were followed, a year later, by Kosovo-wide elections from which the Parliament, the Government and the President emerged. In 2002 and 2004 Kosovo had another wave of local and national elections, with gradually greater input and responsibility of local institutions in all areas of competence, including running the elections themselves. Finally, it is worth mentioning that transfer of power from one government to another and to the new president after the death of President Rugova, a person who has been at the forefront of Kosovo’s movement for independence and LDK for nearly 16 years, took place without major obstacles. Exercise of the authority of UNMIK and Provisional Institutions of Self-government (PISG) throughout the entire territory of Kosovo has continuously been challenged by the existence of parallel structures supported and directly controlled by Belgrade. Parallel structures, including courts and other outlets of the Belgrade government, which operate in Kosovo without hindrance, drastically undermine both the identification of citizens with the rule of law and their trust in the system. This is particularly the case with the Serb community which relies on such outlets for delivery of basic services. In spite of a continuous political commitment of the international administration to resolve the issue of parallel structures little has been done and the reality on the ground proves the 7 EECR, Volume 9 Number 4, Fall 2000. New York University Law School and Central European University. Available online: http://www.law.nyu.edu/eecr/vol9num4/constitutionwatch/yugoslavia.html (last visited: 20 February 2006) 8 Regulation 2001/9 on A Constitutional Framework for Provisional Self-government. Available online: http://www.unmikonline.org/regulations/2001/reg09-01.htm (last visited: 15 February 2006) Lulzim Peci, Ilir Dugolli, Leon Malazogu – Negociating Kosovo’s final status – Mars 2006 4 http://www.ceri-sciences-po.org