Institution-Building and Human Rights Protection in Kosovo in the Light of UNMIK Legislation

Abstract By analyzing specific legislative and institutional aspects of UNMIK's administration of Kosovo, this article attempts to highlight the discrepancy between the nature of an international security presence and civilian administration (under Security Council peacekeeping mandate), and effective human rights remedies, as well as principles of democratic governance such as accountability, lawfulness and constitutionality. The `constitutional' aspects of the current system of governance in Kosovo are described and difficulties of creating an international administration, which seeks to gain a certain level of acceptance by the subjected population, are pointed out. The article explains how UNMIK went about establishing a Joint Interim Administrative Structure while dismantling parallel, illegitimate power structures. It further addresses the Constitutional Framework for Provisional Self-Governance and evaluates briefly its human rights-related aspects. Legislative issues and questions concerning the rule of law are discussed in another section, which deals with UNMIK's formal commitments to adhere to the highest level of internationally recognized human rights standards. Several important Regulations issued by the Special Representative of the Secretary General (SRSG) are analyzed. Consequently, the most significant structures and mechanisms for the protection, promotion and monitoring of human rights are shortly presented and put in context. The article raises several crucial questions concerning the access to effective remedy and the effectiveness of human rights institutions in an environment of legal uncertainty, the absence of the rule of law and the supremacy of international authority, which is beyond the reach of judicial control or review. It concludes that if effective human rights protection shall be the outcome of structures dedicated to human rights, these structures have to be constructed to offer real remedies, proper judicial procedures and legal clarity. The present nature of international peace missions (military and civilian) is not compatible with the requirements of a law-based administration according to the Rechtsstaat-model, which is arguably a prerequisite for effective human rights protection.