PART III POSTCONFLICT ADMINISTRATIONS IN PRACTICE
Chapter 11. Institution-building and Democratic Governance
A. From Interim to Elected Institutions
1. A Constitutional Framework for Kosovo
UNMIK’s mandate was both explicit and imprecise. Since Kosovo’s final sta- tus was left in an indeterminate state, the administration’s main task was to facilitate the transfer of all authority to “provisional institutions for democratic and autonomous self-government”, but the actual substance and timetable for such a transfer were uncertain. Having established that the UN mission would exercise all legislative, executive and judicial authority in the province, the Spe- cial Representative upon his arrival established a ‘Kosovo Transitional Council’
1112 SC Res. 637, UN Doc. S/RES/637 (1989).
1113 GA Res. 45/21 Electoral Assistance to Haiti, UN Doc. A/45/490 (1990), para. 12.
(KTC), as a consultative, legislator-like organ. The Council was convened for the first time in July 1999.1114 A few months later it was expanded and integrated into the first Kosovar multi-ethnic governmental structure: the ‘Joint Interim Administrative Structure’ ( JIAS).1115
The JIAS comprised, besides the Kosovo Transitional Council, an Interim Administrative Council (IAC) and administrative departments, co-headed by local and international officials. The Kosovo Transitional Council and the Interim Administrative Council were both advisory organs with no real powers. However, the setting up of intermediary structures was important in order to replace all parallel structures at the same time as creating a single authority in the province.
While some of the functions had already been transferred to the administrative departments, UNMIK’s pillars remained the principal organs of the transitional administration. Unlike the Kosovo Transitional Council which was an institution comprising only Kosovars, the Interim Administrative Council was composed of four UNMIK and four Kosovar representatives. The Interim Administrative Council’s main task was to propose amendments to the applicable laws and the adoption of new regulations.1116 The Special Representative who presided over the Council had no voting power, but could nevertheless refuse to take account of the recommendations provided that his refusal was reasoned. The Interim Administrative Departments were co-headed by a Kosovar national and a senior international UNMIK staff member, under the overall supervision of a Deputy Special Representative who retained the final authority to take a decision if there was no agreement between the co-heads. These governing bodies were the first step towards the transfer of the legislative and executive competences to Koso- var institutions. This transitional solution lasted for more than a year and was abandoned after the adoption of the ‘Constitutional Framework for Provisional Self-Government’.1117 The promulgation of the Constitutional Framework was criticised by both Kosovo Albanians and Serbs. The former protested because the structures did not challenge the fact that Kosovo belonged to Serbia, while the latter interpreted the structure as paving the way for independence as it included a Kosovar Presidency.1118
Under the Constitutional Framework large areas of executive and legislative power were transferred to the local institutions, while reserving powers to the
1114 UNMIK Press Release, UNMIK Convenes First Meeting of Kosovo Transitional Council, UN Doc. UNMIK/PR/12 (16 July 1999).
1115 UNMIK Regulation 2000/1, supra note 476.
1116 Ibid., section 3.
1117 UNMIK Regulation 2001/19, supra note 477. See Annex VI, Structure of the Provisional Institutions of Self-Government.
1118 See Derens, J.-A., ‘Le plan Haekkerup inquiète les Serbes’, La Libre Belgique (16 May 2001).
Special Representative to ensure the implementation of Resolution 1244.1119 The Special Representative retained final authority on various competences transferred to the Kosovar institutions. The Constitutional Framework provided inter alia that it is the task of the Special Representative to promulgate the laws adopted by the Assembly.1120 The Special Representative could therefore veto any law considering that the Constitutional Framework did not specify an obligation for the Special Representative to promulgate all the laws adopted by the Assem- bly. It was nevertheless understood that this right should be exercised only in order to prevent the adoption of legislation which conflicted with, for example, Resolution 1244 or international human rights obligations. In the early years of the Assembly’s work the Special Representative of the Secretary-General did not promulgate several of these laws since these impinged on the Special Rep- resentative’s reserved competences.1121
While UNMIK immediately included local actors in the decision-making process, it has nevertheless been very reluctant to transfer competences to the local institutions. First, one must remember that the security situation in which politicians were often targeted and the ethnic divisions within Kosovar society were not favourable to a complete handover. In addition, parallel structures persisted,1122 and the Serb minority was unwilling to participate in the func- tioning institutions. Moreover, the uncertain final status of the Province was an important obstruction to a complete transfer of competences, as Resolution 1244 requested UNMIK only to work towards the establishment of substantial autonomy and self-government in Kosovo.
UNMIK decided to hold the first local elections on 28 October 2000, fol- lowing the creation of “provisional institutions for democratic and autonomous self-government at the municipal level” in August 2000.1123 The preference for holding municipal elections first has to be considered in the context of Kosovo’s uncertain final status. National elections were not yet feasible in 2000 as there was no agreement on the provisional national institutions. Moreover, UNMIK feared that early elections would be beneficial to radical parties such as the UCK/
1119 UNMIK Regulation 2001/19, supra note 477, consideration 9 and Chapter 12.
1120 Ibid., para. 9.1.44.
1121 For example, the Assembly adopted a Resolution on the protection of the territorial integrity of Kosovo which challenged borders which had been defined in a treaty concluded in 2001 between the Federal Republic of Yugoslavia and the former Yugoslav Republic of Macedonia.
See: UNSC Presidential Statement, UN Doc. S/PRST/2002/16 (24 Mai 2002).
1122 See on this issue: OSCE Mission in Kosovo, Department of Human Rights, Decentralization and Communities, ‘Parallel Structures in Kosovo 2006–2007 (4 April 2007).
1123 UNMIK Regulation 2000/45 on Self-Government of Municipalities on Kosovo, UN Doc.
UNMIK/REG/2000/45 (11 Aug 2000), Section 1.1.
KLA.1124 In addition, and more generally, the UN has learned that the holding of national elections can no longer be a mere exit strategy by itself, but needs to be considered as no more than a part of the long-term institution-building process. The requirement of a stable political environment can therefore neces- sitate the postponement of national parliamentary or presidential elections.1125 A similar gradual approach towards the holding of elections has been taken in the other cases.
The elections for the municipal assemblies were generally seen as free and fair, and despite some logistical problems1126 no serious incidents have been reported.1127 However, due to the boycott of the three Serb-dominated municipalities in the north of the Province, only 27 of the 30 municipalities successfully elected a Municipal Assembly. As far as the three other municipalities are concerned, the outcome was not certified as a result of the insignificant voter turnout,1128 and the Special Representative of the Secretary-General decided to appoint the members of the Municipal Assemblies in these three municipalities.1129 The next municipal elections were held on 26 October 2002, and were similarly, according to the observers, in accordance with international standards.1130 Again, the turnout of Kosovo Serb voters was very low as a result of mixed signals from the Yugoslav authorities with regard to participation, and, secondly, because of doubts among the Serbs themselves concerning the benefits of participation.1131
The Constitutional Framework established a Parliamentary Assembly, a Government and a President of Kosovo as the new Kosovar institutions. These institutions were effective from the organisation of elections on 17 November 2001, resulting in the successful transfer of large parts of the executive and leg- islative authority. Again, the elections were considered a success, in spite of some
1124 Caplan, supra note 467, p. 123.
1125 See Chesterman, supra note 104, pp. 208–210 and Ludwig, R., ‘The UN’s Electoral Assistance:
Challenges, Accomplishments, Prospects’, in Newman and Rich, supra note 82, p. 169.
1126 Report of the Secretary-General on the United Nations Interim Administration Mission on Kosovo, UN Doc. S/2000/196 (15 Dec. 2000), para. 3.
1127 See Hysa, Y., ‘Kosovo: A permanent international protectorate?’, in Newman and Rich, supra note 82, p. 296 and Yannis, A., ‘The UN as Government in Kosovo’, 10 Global Governance 67 (2004), p. 76.
1128 Report of the Secretary-General, UN Doc. S/2000/196, supra note 1126, para. 4 and OSCE Mission in Kosovo, ‘Kosovo Municipal Elections 2000 – Final Results’ (8 November 2000).
1129 Report of the Secretary-General on the United Nations Interim Administration Mission on Kosovo, UN Doc. S/2003/113 (29 January 2003), para. 18.
1130 Council of Europe, ‘Final report of the Election Observation Mission for the 2002 Kosovo Municipal Assembly Elections (CEEOM III)’, Doc. Nr. SG/Inf(2002)49 (26 November 2002), paras. 140–145.
1131 Report of the Secretary-General, UN Doc. S/2000/196, supra note 1126, para. 3.
reports of voter intimidation in the northern part of Kosovo.1132 As provided for by the 2004 Kosovo Standards Implementation Plan,1133 the 2004 elections to the National Assembly were organised by the people of Kosovo themselves, under the supervision of the Central Election Commission.1134 The Kosovo Serb turnout in the 2004 National Assembly elections was again ‘negligible’,1135 and resulted in the reduction of their available seats to the ten set aside for Kosovo Serbs in the Assembly.1136 Finally, following the declaration of independence by the Assembly on 17 February 2008, a new Constitution came into effect on 15 June 2008 which is principally based on the February 2007 Ahtisaari settle- ment proposal.1137