5 December 2013
The German professor on my right is banging his fist on the desk, making a good point loudly. On my far right is the President of the Kosovo Supreme Court. To my left is the President of the Kosovo Constitutional Court. Judges of both of these two courts are sitting at tables perpendicular to mine, facing each other like opposing quiz teams.

My role here in Greece, on behalf of the UK Foreign and Commonwealth Office, and British Embassy in Pristina, Kosovo, is to run a workshop on improving relations between the two courts (in partnership with RIPA International and Agencia Consulting).  The Kosovo Constitution is ambiguous on some elements of their relationship, and so to maintain the rule of law and to ensure effective judicial protection for Kosovo citizens clarity is needed. I am a specialist in international human rights law and, in particular, its application in fragile, transitional, or post-conflict states (see J A Sweeney, The European Court of Human Rights in the Post-Cold War Era: Universality in Transition (2012), paperback Summer 2014).  I have worked in many states of the former USSR and its satellites, as well as Kosovo itself, on behalf of the Council of Europe and other organisations.  I have taken masters students to Kosovo on field trips for the past two years, meeting opposition political parties, ministers, NGOs, and the President, Madam Atifete Jahjaga.

Legally and politically Kosovo is a fascinating place.  More importantly, given the crucial role of the UK in the NATO action of 1999, it is a state that UK lawyers cannot, and politicians should not, ignore.  It is also the only place on earth that I can tolerate people enjoying the music of James Blunt (as Corporal James Hillier Blaunt, he served in the British Army there, and is held in some esteem). The legal issues surrounding Kosovo include the legality of NATO’s bombing of Serbia in 1999 to curtail Serbia’s atrocities against Kosovo Albanians, which is core to any discussion of the right to use armed force in international law (known as the jus ad bellum):  anyone seeking to understand the mess in Iraq needs first to study Kosovo.  Likewise the Kosovo’s 2008 declaration of independence from Serbia is a crucial case-study in ‘self-determination’ (see Lancaster’s own James Summers’ book ‘Peoples and International Law: How Nationalism and Self-determination Shape a Contemporary Law of Nations).  Then of course there are the many issues raised by the attempt to ‘build’ a modern Kosovo: these include the rule of law and democracy building, security sector reform, and transitional justice – all with varying degrees of international involvement. The workshop last week was aimed at improving the rule of law and human rights protection, by clarifying the working relationship between the Supreme Court and the Constitutional Court.  In a series of cases, the Constitutional Court has, at the request of aggrieved parties under Article 113.7 of the Constitution, purported to quash judgments of the Supreme Court.  This has caused friction, and could be avoided if the Supreme Court used the ‘incidental review’ process provided for in Article 113.8 of the Kosovo Constitution by which, when a court is hearing a case in which a constitutional issue arises, it can halt proceedings and ask the Constitutional Court for a judgment on the constitutional issue.  After the Constitutional Court ruling, the case should be handed back to the court that made the referral for final determination of the original case.

My contribution was to draw attention to the experiences of other states, and also the practice of the European Union.  In relation to the former, I discussed the findings of the 2002 12th Congress of the Conference of European Constitutional Courts, which examined the powers of different constitutional courts across Europe, and the extent of any obligation upon other courts to make references to the constitutional court.  I then made extensive reference to the evolution of the ‘preliminary reference’ process in EU law.  The idea was to suggest that where the constitution is silent or ambiguous, one can look to practice from other jurisdictions to construct a working practice that can clarify how to use provisions such as Kosovo’s ‘incidental review’ procedure. The workshop lasted two days, and we thrashed out some pretty significant issues.  These included under what circumstances the Constitutional Court would accept or reject a referral (even down to who needs to sign a referral request), and to what extent there was a constitutional obligation on regular courts to make referrals if there was a novel issue of constitutional law arising.  In UK law, we tend to rely on ‘constitutional conventions’ evolved often over centuries to get the job done, but in states with a written (and very new) constitution, such an approach is difficult to comprehend.  It was, in constitutional terms, a little like being present just after the Big Bang: there is a new constitution, and a constitutional court, but there is much scope for evolution.

James A. Sweeney (@James_Sweeney_) is Professor of International Law in the Law School at Lancaster University.  He has published widely in the areas of human rights and refugee law, and is the author of The European Court of Human Rights in the Post-Cold War Era: Universality in Transition, the first monograph to examine transitional justice in the jurisprudence of the ECHR.  His work on the human rights of failed asylum seekers, [2008] Public Law 277-301, has the distinction of being cited with approval both by the House of Lords and the Court of Appeal, in the cases of R (on the application of M) v Slough BC [2008] UKHL 52, [28], and SL v Westminster City Council [2011] EWCA Civ 954, [16].

You can find out more about James’ research at http://www.lancaster.ac.uk/fass/law/profiles/james-sweeney