UNMIK/FR/0040/01
FEATURE RELEASE - May 25, 2001
Constitutional Framework
Behind the Framework
By Alexander Borg-Olivier
In the first of a series of articles on how UNMIK=s most important legislative act to date, UNMIK regulation no. 2001/9 on a Constitutional Framework for Provisional Self-Government in Kosovo, the UNMIK Legal Adviser explains how it took its final shape.
Those who argued, in the final days before the draft legal framework
was discussed with the UN Secretary-General and the Security Council, over
whether it represented 95 per cent or 99 per cent agreement missed the
main point entirely.
The real achievement of the Joint Working Group
and others involved in putting together the framework was the Framework=s
promulgation with 100 per cent agreement on nearly all its major ideas.
Between early March and the beginning of May those ideas had grown from
nothing more than an acknowledged need for a blueprint for provisional
self-government to a full-fledged prescription for transfer of competence
in legislative, executive and judicial fields to provisional
self-government institutions. It was an intensive joint exercise involving
representatives of all three major Kosovo-Albanian political parties, the
Kosovo Serbs, other non-Albanian national communities and civil society
working with members of UNMIK's three pillars, the SRSG's political
advisor, an external legal expert and myself as the UNMIK Legal Adviser.
Not unexpectedly, the effort suffered many setbacks -for example the
early withdrawal of the Kosovo Serb representative at the behest of
Belgrade. UNMIK ensured, nevertheless, that Kosovo Serbs were regularly
informed of subsequent progress, and at the eleventh hour their
representative returned to the group.
Another early hurdle was
convincing the Kosovo-Albanian representatives that there really were
constraints on what could be included. UNMIK fully understood their wish
for a full constitution with all the attributes of statehood. But
SRSG Hans Haekkerup had to ensure that everything would remain inside
Security Council Resolution 1244 and that, in particular, nothing in the
legal framework would in any way preclude or touch upon Kosovo's final
status which is to be determined through a political process at a later
stage.
One of my main tasks as Legal Adviser throughout the process of
developing and fleshing out the Framework was to explain and occasionally
to interpret SCR 1244 and define the limits for the Joint Working Group
(JWG). At the same time, we were at pains to accommodate as many of the
aspirations coming from all sides as possible.
Interpretation was
necessary because on one hand, SCR 1244 does not define use of terms such
as "aprovisional" and "asubstantial". On the other, we knew that we had to
have the backing of the Secretary-General and the Security Council for the
final result. Any major deviation from the Council's collective
understanding of either what SCR 1244 means or what is politically
acceptable to the Council would have sent us all back to the drawing
board. Had that happened, it would not have left sufficient time to
prepare an election this year.
This is also why UNMIK
maintained its communication channels with both Belgrade and Kosovo Serb
representatives. To have ignored their concerns entirely would have
severely undermined the Framework's credibility and legitimacy
internationally. And by that token, the SRSG's success in persuading the
Kosovo-Albanian members of the Interim Administrative Council (IAC) to
take in the UNMIK-modified Kosovo Serbs proposals was crucial. It enabled
UNMIK to convince members of the Security Council and others that all
legitimate concerns had been taken on board and that the best balance of
all stakeholders' interests could now be achieved.
The outcome, the
SRSG was able to assure the Council, would be a Framework that would
define the provisional institutions for democratic self-government pending
a political settlement. The people of Kosovo would thereby know what they
would be voting for when the Kosovo-wide elections, also foreseen in SCR
1244, were held.
SCR 1244 constraints
Major areas of concern to
the Kosovo-Albanian side that could not be addressed in full were its
demands for a full-fledged constitution, a built-in plan for a referendum
and a time-line for moving to a final status settlement.
"Constitution" vs "constitutional" C the difference sounds semantic,
but everyone in the JWG and IAC understood the distinction. Kosovo
Albanians argue that since in 1974 Kosovo already had both a constitution
and a constitutional court, the new framework could equally be termed a
constitution. So was there really any difference between UNMIK's term
"Constitutional Framework" and a constitution?
The formal answer is
that only an independent state or an entity with a defined constitutional
status - Kosovo's case in 1974-can have a constitution. Under SCR 1244,
UNMIK had to recognize, Kosovo's status is still to be resolved. This is
why the final document could not be referred to as a constitution: it
would have gone beyond the limits of SCR 1244. It is, of course,
"constitutional" in the sense that it relates to a constitutional act or
exercise that governs the establishment and workings of the provisional
self-government institutions. The term "Constitutional Framework", SRSG
Hans Haekkerup was able to tell the Security Council, in no way connotes
independence or statehood. It will simply provide for meaningful
self-governance for Kosovo but does not change its status. And it is
completely neutral in so far as Kosovo's future status is concerned.
Matters concerning final status are simply not addressed.
Requests for
a Constitutional Court, also provided for Kosovo in the 1974 Constitution
and found in other jurisdictions, fell partly to the same logic. On a
practical level, it was not possible under SCR 1244 to have a higher legal
authority than the SRSG. UNMIK did agree on the other hand that a judicial
mechanism was necessary for interpreting Constitutional Framework issues.
This is the task of a Special Chamber to be created within the existing
Supreme Court. It will decide: whether or not laws adopted by the Assembly
are incompatible with the Constitutional Framework, which of the
institutions and committees set up by the Framework should prevail in the
event of a dispute between them, and on matters affecting the status and
privileges of the self-government institutions and their
members.
The argument against the broad wish for a referendum was
partly again that it was not envisaged in SCR 1244. But the major reason
was political: Secretary-General Kofi Annan, the Security Council and the
international community at large were all against it at this time.
Ultimately, everyone knows what the Kosovo-Albanian and Kosovo Serb
communities want. And, at the appropriate time, their options and desires
will not be ignored. In the meantime, the Constitutional Framework sets up
a structure by which the needs of all the people of Kosovo will be
addressed by their own elected representatives and by their own
institutions. This will facilitate the process in which the final status
of Kosovo will be determined.
Nor will the Assembly be able to reverse
the position as reflected in the Constitutional Framework. Should it try,
the SRSG will be obliged under SCR 1244 to block it.
Finally on the
time-line for what happens after self-government, neither UNMIK not the
international community could accept that the Constitutional Framework
itself could prescribe how and when Kosovo's final status could be
determined.
In the interim, Kosovo will have a full measure of
self-government based on a Constitutional Framework, which contains all
the necessary elements and safeguards to satisfy the essential concerns
and legitimate aspirations of all the inhabitants of Kosovo during this
important phase in its history.
Note for editors
The full document may be consulted online in
English at http://www.unmik.org/.
Albanian and Serbian versions can be provided.
For a selection of photographs, please contact Mr Ky Chung at 038 504-604 ext. 5467
Contact: Peter Ellwood
(038) 504 604 Ext. 5471
E-mail: ellwood@un.org