Introduction
Kosovo, as a relatively new state in the international arena, declared its independence from Serbia on February 17, 2008. Since then, it has sought to establish itself as a sovereign entity with the capacity to engage in international relations, including the formation of treaties. The treaty-making process in Kosovo is governed by its constitutional framework, which delineates the legal mechanisms for entering into international agreements and aligning them with national law. Additionally, Kosovo’s approach to international obligations raises questions about its relationship with international legal instruments such as the Vienna Convention on the Law of Treaties (VCLT) of 1969, as well as its stance on the integration of international law into domestic law through monist or dualist approaches.
This article explores Kosovo’s treaty-making process, focusing on the constitutional provisions that regulate the conclusion of treaties, the country’s approach to the integration of international law, and its status vis-à-vis the VCLT 1969. It also examines how these factors influence Kosovo’s interactions with other states and inform best practices for entering into treaties with this emerging state. By addressing these issues, the article aims to contribute to a broader understanding of Kosovo’s position in international law and the practical implications for states seeking to establish formal agreements with it.
Constitutional Framework for Treaty-Making in Kosovo
The Constitution of the Republic of Kosovo, adopted on June 15, 2008, serves as the foundational legal document governing the state’s treaty-making powers. As a young democracy with a history of international oversight under the United Nations Interim Administration Mission in Kosovo (UNMIK), Kosovo’s constitutional design reflects a blend of international influence and national aspirations for sovereignty. The Constitution explicitly addresses the ability of Kosovo to enter into international agreements, outlining the procedures, competencies, and responsibilities of state institutions in this process.
Article 18 of the Constitution of Kosovo is central to understanding the treaty-making authority of the state. It stipulates that “the Republic of Kosovo may, on the basis of reciprocity, enter into international agreements and become a member of international organizations” (Constitution of the Republic of Kosovo, 2008, Art. 18.1). This provision establishes Kosovo’s legal capacity to engage in treaty-making as an expression of its sovereignty, albeit with a condition of reciprocity that underscores mutual recognition and cooperation with other states. While the principle of reciprocity is not uncommon in international relations, its explicit mention in the Constitution highlights Kosovo’s intent to build diplomatic relations on equitable terms, particularly given its contested status in the international community.
Further detailing the procedural aspects of treaty-making, Article 18.2 of the Constitution vests the authority to negotiate and sign international agreements with the President of the Republic, though this power is exercised in consultation with the Government. Specifically, it states, “The President of the Republic of Kosovo, in consultation with the Government, represents the Republic in the negotiation and conclusion of international agreements” (Constitution of the Republic of Kosovo, 2008, Art. 18.2). This provision ensures a collaborative approach between the President and the Government, balancing executive powers and fostering a cohesive foreign policy strategy.
However, the ratification of treaties, which gives them binding force under Kosovo’s legal system, requires the involvement of the Assembly of Kosovo, the country’s legislative body. According to Article 18.3, “International agreements relating to the following subjects are ratified by a two-thirds vote of all deputies of the Assembly: (1) territory, peace, alliances, political and military issues; (2) membership of the Republic of Kosovo in international organizations; (3) the undertaking of financial obligations by the Republic of Kosovo” (Constitution of the Republic of Kosovo, 2008, Art. 18.3). This requirement of a supermajority vote for critical agreements reflects a cautious approach to international commitments that could significantly impact Kosovo’s sovereignty, security, or financial stability. For other types of agreements not falling under these categories, a simple majority vote in the Assembly suffices for ratification, as implied by the broader legislative powers outlined in Article 65 of the Constitution, which grants the Assembly authority over laws and international agreements.
The role of the Constitutional Court in the treaty-making process is also noteworthy. Article 113.2(4) of the Constitution empowers the Constitutional Court to review the constitutionality of international agreements upon referral by authorized parties, such as the President, the Government, or at least one-fifth of the Assembly’s deputies (Constitution of the Republic of Kosovo, 2008, Art. 113.2(4)). This judicial oversight ensures that treaties align with constitutional principles, particularly those related to human rights, territorial integrity, and the fundamental structure of the state as defined in Chapter I of the Constitution. Such a mechanism serves as a safeguard against international commitments that could undermine Kosovo’s constitutional order.
Additionally, Kosovo’s Constitution demonstrates a strong commitment to international law and human rights obligations through Article 22, which directly incorporates several international human rights instruments into domestic law. These include the Universal Declaration of Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the International Covenant on Civil and Political Rights, among others (Constitution of the Republic of Kosovo, 2008, Art. 22). This direct incorporation suggests a predisposition towards aligning national law with international standards, a factor that influences how treaties are perceived and implemented within Kosovo’s legal system.
Monist or Dualist Approach: Integration of Treaties into National Law
The relationship between international law and domestic law is traditionally characterized by two competing theories: monism and dualism. Monist systems view international law and national law as part of a single legal order, where international treaties, once ratified, automatically become part of domestic law without the need for additional legislative action. In contrast, dualist systems treat international and national law as separate spheres, requiring specific legislative acts to transform international obligations into enforceable domestic law.
Kosovo’s approach to this dichotomy is nuanced and leans towards a monist perspective, particularly in the realm of human rights and fundamental freedoms. Article 22 of the Constitution, as previously mentioned, directly incorporates key international human rights instruments into Kosovo’s legal system, granting them precedence over conflicting domestic laws. Specifically, Article 53 states, “Human rights and fundamental freedoms guaranteed by this Constitution shall be interpreted consistent with the court decisions of the European Court of Human Rights” (Constitution of the Republic of Kosovo, 2008, Art. 53). This provision indicates a monist tendency, as international norms are not only recognized but also given interpretive authority within the domestic legal framework.
However, for other types of international agreements, Kosovo exhibits characteristics of a dualist system. While the Constitution provides a clear mechanism for treaty ratification through the Assembly, the process of translating treaties into enforceable national law often requires additional legislative or executive action. For instance, treaties concerning technical cooperation, trade, or financial obligations may necessitate the enactment of domestic legislation or regulations to ensure their implementation. This procedural requirement aligns with the dualist approach, where treaties do not automatically acquire the force of law upon ratification but must be domesticated through national legal processes.
This hybrid approach reflects Kosovo’s unique historical and political context. As a state emerging from international administration under UNMIK and guided by the Ahtisaari Plan (formally known as the Comprehensive Proposal for the Kosovo Status Settlement), Kosovo’s legal system was designed to prioritize international human rights norms while retaining flexibility in other areas of governance. Academic analyses, such as those by Daci (2017), highlight that Kosovo’s constitutional framework embodies elements of both monism and dualism, with a stronger monist inclination in matters of human rights due to the direct applicability of international instruments (Daci, 2017).
The practical implication of this hybrid stance is that while certain treaties, particularly those related to human rights, can be directly invoked in Kosovo’s courts, others may require implementing legislation. This duality necessitates clarity in the treaty-making process, as foreign states and international organizations engaging with Kosovo must understand whether a ratified treaty automatically binds domestic actors or requires further legislative steps for enforcement.
Kosovo and the Vienna Convention on the Law of Treaties (1969)
The Vienna Convention on the Law of Treaties (VCLT) of 1969 is widely regarded as the cornerstone of international treaty law, codifying customary rules on the formation, interpretation, and termination of treaties (United Nations, 1969). For states party to the VCLT, the Convention provides a standardized framework governing treaty-making processes, ensuring predictability and consistency in international relations. However, Kosovo’s status in relation to the VCLT remains ambiguous due to its contested recognition as a sovereign state and the complexities surrounding its succession to international treaties.
As of the latest available data, Kosovo is not a formal party to the VCLT 1969. The Convention was adopted before Kosovo’s declaration of independence, and Kosovo was not a successor state to Yugoslavia in the same manner as other former Yugoslav republics, which acceded to the VCLT following the dissolution of the Socialist Federal Republic of Yugoslavia. Furthermore, Kosovo’s partial recognition—recognized by over 100 UN member states but not by key powers such as Russia and China—complicates its ability to accede to multilateral treaties deposited with the UN Secretary-General, including the VCLT (United Nations Treaty Collection, 2023).
Despite not being a party to the VCLT, Kosovo’s treaty-making practices appear to be influenced by the principles enshrined in the Convention, likely due to customary international law. Many of the VCLT’s provisions, such as those governing the consent to be bound by a treaty (Articles 11-17) and the interpretation of treaties (Articles 31-33), are considered reflective of customary international law and are thus binding on all states, including non-parties (Sinclair, 1984). Kosovo’s adherence to these norms is evident in its constitutional provisions for treaty negotiation and ratification, which mirror the VCLT’s emphasis on state consent and formal procedures.
For other countries entering into treaties with Kosovo, the absence of formal accession to the VCLT does not necessarily pose a legal barrier, as customary international law provides a fallback framework. However, it does underscore the importance of explicit agreements on procedural matters, such as the form of consent, reservations, and dispute resolution mechanisms, to avoid misunderstandings. States engaging with Kosovo should also be mindful of its limited international recognition, which may affect the enforceability of treaties in third-party contexts or international forums. For example, a treaty concluded with Kosovo may not be recognized by states that do not acknowledge its sovereignty, creating potential legal and diplomatic challenges.
Moreover, Kosovo’s non-party status to the VCLT highlights a broader issue for emerging states in the international system. Many such states face structural barriers to joining key multilateral treaties due to political disputes over recognition. As a practical matter, states wishing to enter into treaties with Kosovo may need to rely on bilateral agreements that explicitly define the legal framework for their relationship, incorporating VCLT principles by reference if necessary. This approach can provide clarity and stability, even in the absence of formal VCLT membership.
Implications for International Relations and Treaty-Making with Kosovo
Kosovo’s treaty-making process and its relationship with international law have significant implications for states and organizations seeking to establish formal agreements with it. Firstly, the constitutional requirement for Assembly ratification, particularly the two-thirds majority for critical agreements, signals a deliberative and cautious approach to international commitments. Foreign partners must anticipate potential delays in the ratification process, especially for treaties involving sensitive issues such as territory or security, and should engage with both the executive and legislative branches to ensure broad political support within Kosovo.
Secondly, the hybrid monist-dualist nature of Kosovo’s legal system requires careful consideration of how treaties will be implemented domestically. For treaties outside the scope of human rights, states should advocate for clear language in agreements regarding the steps Kosovo will take to domesticate obligations, whether through legislation or administrative measures. This can mitigate the risk of non-compliance due to internal legal constraints.
Thirdly, the lack of formal accession to the VCLT 1969 underscores the need for explicit procedural agreements in treaties with Kosovo. States should ensure that treaties include provisions on entry into force, interpretation, and termination that align with customary international law, compensating for the absence of a binding VCLT framework. Additionally, states must navigate the geopolitical realities of Kosovo’s partial recognition, potentially limiting the scope of treaties to bilateral or regional contexts where recognition is not an issue.
From a broader perspective, Kosovo’s treaty-making framework offers valuable lessons for other partially recognized or emerging states. Its constitutional emphasis on reciprocity and legislative oversight provides a model for balancing sovereignty with international engagement, while its hybrid approach to international law integration reflects the pragmatic challenges of transitioning from international administration to full statehood. For the international community, engaging with Kosovo through treaties can also serve as a means of reinforcing its state-building efforts, provided that such engagements are grounded in mutual respect for legal and political realities.
Challenges and Future Prospects
Despite the clarity provided by Kosovo’s constitutional framework, several challenges remain in its treaty-making endeavors. The most significant is the issue of recognition, which limits Kosovo’s ability to participate in multilateral treaties and international organizations. This constraint not only affects its accession to treaties like the VCLT but also impacts the enforceability of bilateral agreements in broader international contexts. For instance, agreements with Kosovo may not be recognized by states or entities that contest its statehood, creating legal uncertainties for third-party obligations.
Another challenge lies in the capacity of Kosovo’s institutions to effectively manage the treaty-making process. As a young state, Kosovo faces resource constraints and a lack of experienced diplomatic personnel, which can hinder negotiations and implementation of complex international agreements. International assistance, such as capacity-building programs from the European Union or the United Nations, could play a critical role in addressing these gaps, enabling Kosovo to engage more confidently in treaty-making.
Looking ahead, Kosovo’s treaty-making process is likely to evolve as it seeks greater integration into the international community. Potential accession to the VCLT 1969, should political barriers be overcome, would formalize its commitment to international treaty norms and enhance its credibility as a treaty partner. Additionally, progress in resolving recognition disputes, particularly through dialogue with Serbia facilitated by the European Union, could open doors to wider participation in multilateral frameworks, further solidifying Kosovo’s place in the international legal order.
Conclusion
Kosovo’s treaty-making process, as defined by its constitutional framework, reflects a careful balance between asserting sovereignty and adhering to international norms. The Constitution of 2008 provides a clear legal basis for entering into treaties through provisions such as Article 18, which assigns roles to the President, Government, and Assembly in negotiation and ratification processes. Kosovo’s hybrid monist-dualist approach to integrating treaties into national law, with a strong monist inclination in human rights matters, underscores the complexity of its legal system, shaped by its unique historical trajectory. While not a party to the Vienna Convention on the Law of Treaties 1969, Kosovo operates within the customary norms of international law, offering a practical if not formal alignment with global treaty standards.
For states seeking to enter into treaties with Kosovo, an understanding of its constitutional mechanisms, legal integration processes, and geopolitical constraints is essential. By tailoring agreements to account for these factors, foreign partners can foster effective and sustainable cooperation with Kosovo, contributing to its state-building efforts and integration into the international community. As Kosovo navigates the challenges of recognition and institutional capacity, its treaty-making framework serves as both a reflection of its aspirations and a testament to the broader complexities of statehood in a fragmented international system.
References
- Constitution of the Republic of Kosovo. (2008). Retrieved from the official website of the Assembly of Kosovo.
- Daci, J. (2017). The Relationship between International Law and Domestic Law under the Constitution of the Republic of Kosovo. Academia.edu. Retrieved from https://www.academia.edu/33974861/The_Relationship_between_International_Law_and_Domestic_Law_under_the_Constitution_of_the_Republic_of_Kosovo
- Sinclair, I. (1984). The Vienna Convention on the Law of Treaties (2nd ed.). Manchester University Press.
- United Nations. (1969). Vienna Convention on the Law of Treaties. Treaty Series, vol. 1155, p. 331.
- United Nations Treaty Collection. (2023). Status of Treaties: Vienna Convention on the Law of Treaties. Retrieved from https://treaties.un.org
