The applicable law in Kosovo

The relationship between international law and domestic law is object of different theories among which the most relevant are: the Monist Theory, Monist Inverse Theory, Dualist Theory, and Harmonization Theory. Indeed, these theories and all the other theories, aim nothing more or less than the explanation of the interdependent and hierarchical relationship between the international law and domestic law. Indeed, the study and the analysis of relationship between the rules of international law and rules of domestic law has a particular importance, because the determination of solutions and dilemmas in regards to this multiple and multidimensional relationship inter alia defines the statues of the state in the arena of the international relation, and impacts directly to its status as an equal member of international community. In fact, the ensemble of rules which we define today as International Law cannot be understood separated from the states domestic law. In reality, these two categories of legal rules are essentially interrelated in a hierarchical manner. Borders and content of the states domestic law systems, today very often are defined in almost natural manner by the rules of the International Law, which gradually have ensured a sustainable prevalence upon the rules of Domestic Law. Regardless of differences from a state to another, even in the case of the Republic of Kosovo, in essence the relationship between International Law and Domestic Law, consists inter alia in four main issues such as: 1. The relationship between rules of International Customary Law and the Domestic Law; 2. The relationship between the rules of International Treaties and the Domestic Law; 3. The relationship between the rules adopted by international organization in which Kosovo would be a member and the rules of Domestic Law; and 4. The relationship between the rules of International law and the Constitution of the Republic of Kosovo itself. This paper aims exactly the analysis of these four issues from a comparative perspective with other states such as: the Republic of Albania, Germany, Netherlands, Italy and the United States of America.

2013

2017

Nowadays there is a general call, of every international institution, meaning EU, and other international mechanism requiring and basing their policies on the principle of conditionality (Pippan, 2004) by urging states to undertake steps to fulfill the whole range of political and economic conditions in return for partnership, membership or monetary aid. Conditionality is screened through the new lenses of order and stability based on rule of law, democracy, free market economy, and respect for human rights and minority rights, envisaged as Western values. (Copenhagen Criteria, 1993) To achieve this aim the rule of law is considered as occupying a unique position in a democratic society, therefore it is called upon states to create conditions for reforms on a judiciary as the traditional mechanism to decide on disputes, to protect citizens from the arbitrary political affiliation or private individuals. As such, it fights corruption too. (Un Judge) Simply said it is required from th...

Review of Central and East European Law, 2018

Building a rule-of-law-based democracy is a challenge for post-communist and post-war societies. Rule of law is a priority for these societies and also one of the membership criteria required by international organizations, in particular the European Union. As such, an aspiring country like Kosovo has to face the challenge of building a legal system that is compatible with that of the European Union member states while also developing its legal cooperation with other countries. Through international legal cooperation, countries strengthen the fight against criminal actions that are punishable in all modern states and also exchange experience in combating cross-border crime, trafficking, corruption, terrorism, and other violations of criminal law. In this regard, Kosovo faces many challenges in the field of international legal cooperation, not only with regard to those missions operating in Kosovo itself (such as EULEX, UNMIK, etc.), but also with other international organizations, e...

2015

The Advisory Opinion of the International Court of Justice on the declaration of independence of Kosovo has left some crucial questions open. The main steps of the Court’s reasoning are re-examined in the article, the most delicate issue being the relationship between international law and domestic law. In particular, the exclusion of the possibility for international law to produce effects at the individual level - that was determinant to the conclusion reached in the Advisory Opinion - is questionable.

ILIRIA International Review, 2011

Here we have studied the international circumstances that have affected the deployment of the EULEX Mission in Kosovo. The EULEX mission is the European Union Mission for the Rule of Law in Kosovo. Its main goal is to advise, assist and support the Kosovo authorities in issues of the rule of law, especially in the field of police, judiciary and customs performance. Also this mission has the responsibility to develop and further strengthen the independent multi-ethnic justice system in Kosovo, by ensuring that the rule of law institutions are not politically influenced and that they meet the known international standards and best European practices. This mission was foreseen to be deployed to Kosovo, based on the Ahtissari Comprehensive Status Proposal for Kosovo, but due to its non-approval by the UN Security Council, its full implementation was delayed until December 2008. EULEX acts within the framework of Resolution 1244 of the UN Security Council and under a single chain of comm...

European Scientific Journal, ESJ

The Special International Court for Kosovo (hereinafter the Special Court) has been established for adjudication of cross-border and international crimes alleged to have been committed in Kosovo during the period of time January 1, 1998-December 31, 2000. This court consists of Specialized Chambers and the Office of Specialized Prosecutor and they shall be able to conduct investigations, criminal prosecutions and trials of persons alleged to have committed war crimes and crimes against humanity. The Special Court shall perform its activities in Kosovo and in The Kingdom of Netherlands. This court has in its focus the adjudication of crimes included in the Report of the Parliamentary Assembly of the Council of Europe DOK 12462 dated January 7, 2011, crimes reported by Swiss Senator Dick Marty. The Special Court is expected to solve the sustainability of charges on organ trafficking and other serious crimes committed by influential individuals within former KLA, charges which shall be...

Chinese Journal of International Law, 2009

The Kosovo problem represents a formidable occasion to re-examine some basic tenets of international law, such as the so-called right to humanitarian intervention, the right to self-determination and the right of recognition. It will be shown here, however, that many proposals suggesting the need of a radical departure from traditional positions are ill-conceived. Nonetheless, it is the uniqueness of many facets of the Kosovo problem that requires the analyst to look for new solution. It is now up to the International Court of Justice to show the way in a politically much loaded case. In particular, the right to self-determination should find a re-interpretation corresponding to the needs of the twenty-first century.

2020

In recent times we have seen that previously established peace and stability instruments have lost their authority. The factors which have guaranteed them for decades have started to self-regulate certain legal and political issues, and thus, such behaviour has produced distrust and global misunderstandings. In this work, our aim will be to connect and understand the recent United Nations (UN) Resolutions, more specifically Security Council Resolution 1244 as related to Kosovo. The UN has been an important factor of stability in the previous century and its role has changed, thus, it is necessary to examine its recent decisions and the legal effects they have produced. In the case of Serbia and Kosovo, we will examine the legal outputs and similar cases. The need for authority in conflict resolution and legal decision enforcement is more than vital for cases such as Ukraine or Syria and (unfortunately) future cases. The UN Interim Administration Mission in Kosovo (UNMIK) has been changed and reshaped in the recent period many times according to its actual (everyday) needs. Contrary to the earlier cases of state recognition in the Western Balkans, the acceptance of Kosovo by the UN never happened. Its recognition by the European Union (EU) member states has caused another inner division in the EU and showed how many decisions without unanimous agreements are harmful. We will focus on the special agreements made between the UN and EU as related to the transfer of authority to Kosovo and what precedents it creates. Kosovo’s independence in 2008 has started an avalanche in the World as related to the establishment of new states on the Kosovo principle which has again harmed the UN system of sovereign states and free nations. This case is of vital interest to both the UN and EU and also to the International Court of Justice in The Hague (ICJ), which could soon be challenged again and tempted to define what sovereignty is. The number of international actors present in Kosovo for almost 20 years, including the UN, the EU, the Organization for Security and Cooperation in Europe (OSCE) and various other organizations, provides a very challenging example of conflict resolution and prevention. A recent agreement signed by Serbia and Kosovo in Brussels in 2013, called the Brussels Agreement, deals with very challenging legal questions which requires some constitutional changes in both countries. What binds Serbia to enforce and respect such decisions when its sovereignty is guaranteed by the UN? In Serbia, the question is, who interferes with its sovereignty and how does the EU treat the UN and its Security Council decisions? In sum, extraterritorial governance has changed the understanding of sovereignty for some post-conflict countries as well as more stable countries.

Przegląd Prawa Konstytucyjnego, 2020

On February 17, 2008, Kosovo declared independence. Over twelve years after the adoption of the Declaration of Independence, the issue of universal, international acknowledgment of Kosovo still has not been resolved. The foundation for the establishment of the Republic of Kosovo was international society, which created the legal framework for the future statehood of Kosovo. The problem of the functioning of the constitutional judiciary was one of the key issues during the creation of the basic law of the Republic of Kosovo. This article s to analyze the constitutional position of the Constitutional Court of the Republic of Kosovo in the state system established under the Constitution of 2008. It presents the composition of the Court, its competence, and principles of organization and functioning. The solution applied in the Kosovo basic law fits into the broadly understood model of the European constitutional judiciary.