UNMIK/FR/023/01
FEATURE RELEASE - 15 March 2001

Legal framework
Interim constitution or legal framework: either way
Substantial Autonomy will be a Substantial Improvement

Even before taking office as UNMIK's second Special Representative of the Secretary General, Hans Haekkerup promised Kosovo a legal framework-the necessary precursor of Kosovo-wide elections. The people of Kosovo had to know at least what they were voting for, as well as how they would undertake the vote.

With goodwill among political leaders, the shape of that framework will become clear in the next few weeks. Vigorous public debate is encouraged, above all within Kosovo's political parties and civil society. To broaden the ownership of the envisaged changes as much as possible, UNMIK will take active steps to promote such discussion-within the Interim Administrative Council (IAC), the Kosovo Transitional Council (KTC), through outreach programmes and, hopefully, through roundtable discussions.
 
In the meantime, a newly constituted Working Group on the Legal Framework is hammering out the details. SRSG Haekkerup has charged seven Kosovo representatives, seven internationals and in international chairman to define the structure, competencies and powers of an Assembly, an executive body and other structures.

The Working group itself has accepted that the substance of its discussion should not move outside the constraints imposed by Security Council Resolution 1244. Nor should any follow-on debate. In practice, nothing else is on offer in any relevant time frame. As Hans Haekkerup reminded the IAC again this week, the Security Council is the final arbiter on the interpretation of its Resolution 1244. The Security Council's political make-up means that meaningful change in that interpretation is unlikely.

Here in Kosovo debates on, for example, who should have responsibility for defence may illuminate; but beyond that they are time wasted. Under SCR 1244, security has to remain a matter for international community's agreed presence in Kosovo, namely UNMIK and KFOR.

The SCR 1244 constraints affect one side of the emerging debate: the scope and substance of the framework and its constituent regulations. The other side, seemingly less important but potentially more threatening to an early outcome, concerns semantics and psychology.

UNMIK's position is that the group should discuss a legal framework that will facilitate the "development of provisional institutions for democratic and autonomous self-government" (SCR 1244, para. 11(c)). The framework will also enable transfer of a significant share of the interim Administration's administrative responsibilities to these institutions (para. 11(d)).

Others think the group should at least discuss an interim "Constitution", agreeing that under SCR1244 it would have to accomplish the same thing. The fact that one sounds more robust, more long-lasting brings us to the psychological dimension.  

What's in a name?
A rose, the poet said, by any other name would smell as sweet. The rose we must not lose sight of in the semantic debate is the value of substantial autonomy to Kosovo as a whole-as big a step towards Kosovar self-government as any yet taken since the conflict ended in June 1999.
 
The first step was the Joint Interim Administrative Structure (JIAS) set up in December 1999. It brought Kosovars into the administration as counsellors, advisors and co-administrators at an impressively early stage.
The second is still ongoing: devolution of power and responsibility from the Pristina-based Kosovo-wide administrative departments to local government administrations set up after the municipal elections in October 2000.
"Kosovarization" will make another quantum jump in the third stage now being worked out:  the establishment and transfer of a major set of administrative responsibilities to a Kosovo Assembly and an executive body following the Kosovo-wide elections planned for later in 2001. 

On offer for the third stage is the kind of autonomy enjoyed by many federal states and cities in the majority democratic societies around the world. In Kosovo, such autonomy must accommodate and support the spirit and, mostly the letter, of the 103 regulations promulgated as applicable law since UNMIK took charge. As now under the JIAS, and like federal states elsewhere, the framework may enshrine the Kosovo Administration's right to frame its own budgets and spending programmes, participate in international contacts in coordination with the SRSG, develop its own civil service and pass its own laws.

What Kosovo needs as a minimum and as soon as possible, UNMIK officials argue, is a set of rules and principles that will ensure these basic functions of self-government continue, and that they are further developed by properly elected Kosovar representatives. The framework should therefore enable the Kosovo-wide elections the people expect. And it should prescribe the follow-up transfer of responsibilities to the newly elected bodies.
 
Thus, what present discussions are beginning to focus on is the scope of the exercise-for example, whether the primary documents in the enabling legislation will concern themselves predominantly with the organization of devolved Kosovo administration. Or (and to what extent) they should also feature deal with the internationally recognized human rights and the goals of the administration. 

So far, so uncontroversial. But it also matters at this stage of Kosovo's history is how key players in the region and the international community will perceive these rules and principles. Whether one calls those rules a legal framework or an interim constitution may be a semantic difference to some-not worth too much argument when measured against the change benefits they will bring. But to others, inside and outside of Kosovo, the psychological connotations of the exercise are immense. In particular, it pits those who want immediate and complete autonomy rather than the substantial autonomy offered under SCR 1244 against those who would not want anything more than what 1244 promises at any price, ever.
The SRSG has made it clear many times that he hopes for convergence between these and other opposing viewpoints. When they no longer converge, he will use his own authority to decide.
 
The "1244" constraints
No country, state or city's governing rules and principles are entirely free of constraints. Those who frame and adjust those rules have constantly to look back into history and sideways into current political practice and the day?to?day working of political institutions, both national and international. Ideally, they must also prepare for future social, economic, technological, and other changes.

Kosovo's framers, presently the working group, are constrained above all by SCR 1244.  So is the SRSG himself. His duty is to control the implementation of the "international civil presence", namely UNMIK. He may not delegate or transfer his authority to any provisional institution (such as those envisaged in the draft legal framework) where they are considered key areas of special importance for the UNMIK mandate.
 
This sets limits to the way the new Assembly and the executive body may exercise their responsibilities. Their decisions and activities may not effect or diminish the SRSG's ultimate authority to oversee their actions, or those of their members and agencies. The SRSG will also have to take appropriate measures whenever he considers their actions are inconsistent with UNMIK regulations, with either the letter or spirit of SCR 1244, with various other instruments and with international law.

The SRSG, in other words, will retain all necessary powers as guardian of the rule of law and its due process in Kosovo. Specific areas where the SRSG's authority will continue to apply are spelled out in UNMIK Regulation 1999/1 and its amendments and also in the preamble and operational paragraphs of SCR 1244.  In addition, the SRSG may retain the same kind of powers with respect to the new institutions as he did in regard to the Municipal Assembles under Regulation 2000/45 on Self-Government of Municipalities of Kosovo.

Pending the "final settlement"
The bottom line is that the outcome of the working group's deliberations, has to recognize both the spirit and letter sense of SCR 1244.

At the same time, SCR 1244 makes it clear that we are presently engaged in a process that will continue after the legal framework is agreed, the elections held and the framework's provisions implemented. The end-stage comes when UNMIK oversees the final transfer of authority from the political institutions the legal framework now seeks to define and establish to new institutions to be set up under a political settlement.

Until then, Kosovo has the opportunity to continue its reconstruction and development in the context of substantial autonomy that promises to be very different from the present Joint Administration. There will be far fewer central departments, a significant increase in "Kosovarization" i.e. the empowerment of Kosovars at all levels of government, and far less decision-power (those retained by the SRSG excepted) in the hands of UNMIK officials.
What Kosovo does with this new regime, how it prospers, how it follows internationally accepted principles of justice and human rights, will no doubt shape the ultimate political settlement and nature of the final constitution, on which Kosovars rightly set such store.

Contact: P. Ellwood
(038) 504 604 Ext. 5471
E-mail:ellwood@un.org