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3 - Kosovo’s Independence Constitution

A Unilateral Commitment to an Internationalized Pouvoir Constituant

Published online by Cambridge University Press:  03 November 2022

Tom Ginsburg
Affiliation:
University of Chicago
Sumit Bisarya
Affiliation:
International Institute for Democracy and Electoral Assistance
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Summary

Kosovo declared independence from Serbia in 2008, after more than thirty years of political limbo, constitutional ambiguity and tension that culminated in the Kosovo War of 1998–1999. The following years witnessed a series of internationally sponsored peace talks, culminating in a Comprehensive Proposal for the Status Settlement in 2007, which Kosovo accepted but Serbia rejected. The Status Settlement proposal served as the basis for Kosovo’s Independence Constitution, which in terms of process, reflects a dynamic interplay between formally internationally-led negotiations on the political status and an informal internationally-supported constitution-making process. In terms of content, it reflects a combination of locally driven choices within internationally imposed guidelines. Therefore, the Kosovo case contributes to the scholarly debate on the legality and legitimacy of internationalized constituting-making processes. While criticism dominates this debate, Kosovo’s experience sheds light on the advantages of such a process in post-conflict contexts. It shows that the internationally influenced constitutional design constraints can also be “enabling” and that the role of external actors can help balance the motivational factors affecting a constitutional design. Furthermore, it reflects how an effectively coordinated partnership between local and external forces can lead to an outcome, which is compatible with the “will of the people”.

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