WHOSE SECULARISM? WHICH LAICITE? NEGOTIATING TRANSNATIONAL AND NATIONAL CONSTITUTIONALISM IN KOSOVO.

• Author: Hellenbrand, Thomas J.

"And how do you know that they will do it no harm?" the hodja broke in angrily. "Who told you ? Don't you know that a single word can destroy whole cities; how much more then such a babel!" (1)

INTRODUCTION

Those perusing their news feed on September 4, 2020, may have been surprised to learn amid inundating coverage about the pandemic and U.S. presidential election that the leaders of Serbia and Kosovo were convening in the White House to sign an "economic normalization" agreement. (2) Photos of the meeting in the Oval Office showed President Trump posed between a noticeably dour Serbian President Aleksandar Vucic and Kosovo Prime Minister Avdullah Hoti. (3) President Trump affectionately remarked, "there was a lot of fighting, and now there's a lot of love.... Economics can bring people together." (4) The agreement, subsequently referred to as the "Washington Agreement," (5) was designed to facilitate economic cooperation between the Balkan neighbors, reportedly including tariff cuts, energy and water resource sharing, and transportation and border crossing improvements. (6) But President Vucic of Serbia has since insisted that the Washington Agreement is merely bilateral-between the United States and Serbia--and that Kosovo was never recognized as a third party in the negotiations. (7) Therefore, some have criticized the Washington Agreement for being inconsequential and a short-term stunt for President Trump's re-election campaign/ More recently, hopes for using the Washington Agreement as a springboard for peacebuilding were hampered when a summit at the White House between Kosovo and Serbia was postponed after the President of Kosovo was indicted for war crimes. (9)

Nevertheless, the alleged detente has sparked renewed interest in resolving the Balkan peninsula's most intractable diplomatic contest. Kosovo recently celebrated the thirteenth anniversary of its declaration of independence, yet Serbia continues to refuse recognition of Kosovo statehood. (10) An independent Kosovo--once the heartland of the medieval Serbian kingdom--threatens the historical and religious identity of Serbia. Economic cooperation is certainly important, but the political and territorial conflict is also infused with religious meaning as Orthodox Serbians are frequently pitted against Muslim Kosovars in public discourse. (11) As a result, religious disputes have proven to be an especially significant obstacle to a political resolution between Serbia and Kosovo. (12) Any discussion of normalization between Serbia and Kosovo must grapple with the legal framework governing the relationship between the Kosovo state and its religious communities. Many Orthodox Serbs who have remained in Kosovo feel persecuted, (13) while Muslim Kosovars have complained that the law gives preferential treatment to the minority Serb community. (14) Additionally, other minority religious communities in Kosovo--Roman Catholics, Jews, Protestants, and Sufi mystics--are discontented with the law's ambiguity regarding their legal status and rights. (l5) Several commentators have recognized the inadequacy and incoherence of Kosovo's religious freedom law and jurisprudence. (16) The source of these legal difficulties, however, is not merely a local issue. Kosovo's constitutional structure is special as it integrates international law (17) directly into its domestic legal system and often prioritizes these global norms over national ones. (18) Professor Paolo G. Carozza calls this "transnational constitutionalism." (19) However, Kosovo's preference for "transnational constitutionalism" has created an incongruity between what Kosovo says it is (i.e., a secular or laic state) (20) and how it behaves toward religious communities (sometimes preferentially, other times with hostility). (21) As a result, religious communities in Kosovo have had trouble navigating the legal waters of the new republic. This uncertainty over legal status and its accompanying rights and responsibilities has generated vitriol against Kosovo's public officials, as well as distrust between religious communities. (22) Some scholars and commentators have proposed piecemeal legislative and administrative reforms to resolve the inefficiencies in the legal system's implementation of state secularism and treatment of religious individuals and communities. (23) While these proposals are certainly efficacious, they are not sufficient. (24) As Kosovo transitions further away from its supervised independence, there must be a deeper reckoning with the constitutional strictures of secularism and the rights of religious communities and individuals.

This Note will argue that Kosovo is not constitutionally bound by international case law, and thus it has greater autonomy to craft policy and law on matters of religion that are adapted to the particularities of the ethnic and religious communities within its borders. Kosovo must remain a secular state pursuant to Article 8 of the constitution, but it is not constitutionally required to import foreign and contradictory principles of secularism into its domestic law. Instead, Kosovo may consult the Ahtisaari Plan--a preconstitutional status agreement that was highly influential in constitutional drafting--which permitted a locally controlled approach to actualizing the flexible constitutional requirement of state secularism. (25) In doing so, Kosovo may also reconcile the equally authoritative yet incompatible translations of Article 8 in its constitution. This is surely not localism for localism's sake. Professor Carozza succinctly explains the "dialogue" between a regime's respect for universal human rights and commitment to national and local norms:

Efforts to integrate commitments to universal rights with stronger orientations toward national identity, self-government, and localism could help us to reach a more adequate equilibrium regarding fundamental rights and democracy in both international and in national constitutional systems. Such an integration would, to begin with, bring about a greater unity of the abstract idea of fundamental rights with concrete social life, a unity necessary if the common good is to be more a tangible reality than pious words.' (26)

To be sure, the implications of this argument would not unmoor Kosovo from the international legal instruments enshrined in its constitution and the ancillary human rights commitments. This Note identifies a misunderstanding of the strictures of Kosovo's constitution regarding state secularism and demonstrates how this mistake has inhibited democratic dialogue within the country, (27) in addition to souring diplomatic relations with Serbia. The tension between international legal institutions and national sovereignty need not always be antagonistic; there can be a dialogic relationship grounded in mutual respect even amid passionate disagreement.

The subject of this Note is situated squarely within a debate about the principle of subsidiarity (28) and thus should be of interest even to those who have no prior familiarity with the Balkans. The principle of subsidiarity, as described by Russell Hittinger, "presupposes that there are plural authorities and agents having their 'proper' (not necessarily, lowest) duties and rights with regard to the common good--immediately, the common good of the particular society, but also the common good of the body politic." (29) Subsidiarity entails a "negative" dimension which prohibits the state from intervening in the domain of lower forms of social organization that are properly equipped to undertake tasks directed toward the common good. (30) Subsidiarity also includes a "positive" dimension which presupposes that higher forms of social organization have the right and duty to intervene in the domain of lower forms of social organization when the lower form cannot adequately perform a task in pursuance of the common good. (31) The principle of subsidiarity then involves both immunity and intervention. This Note will explore how Kosovo's constitution has delegated authority between international, national, and local actors to imbue the ambiguous requirement of state secularism with material meaning. It is an attempt, as Professor Carozza describes, to "put subsidiarity to the test by seeking to apply it to concrete, 'real world' problems." (32) Kosovo may be small, but this constitutional debate is capable of significantly informing our understanding of the role of subsidiarity in international human rights law, and in turn, making secularism less foreign and more intelligible to people of all faiths.

This Note will proceed as follows: Part I will set the stage and briefly outline the history of Kosovo and its current political status. Part II will then introduce the Kosovo Constitution and the process by which international agreements (such as the European Convention of Human Rights) (33) were embedded in the text and made binding legal authority. It will show that, although the international agreements are binding, the Kosovo Constitution does not make international case law obligatory. Part III will then address different foundational documents drafted in anticipation of Kosovo's statehood and how judicial and administrative institutions should apply them to legal disputes involving religion. Finally, Part IV examines some case studies from the Constitutional Court of Kosovo, including a local headscarf ban, special protective zones, and religious-community autonomy issues. These case studies will demonstrate how Kosovo has interpreted and applied foreign understandings of secularism in its constitutional and domestic law.

1. HISTORY AND STATE BUILDING

   Any attempt at a historical narrative of Kosovo will be highly fraught with disagreement and acrimony. History becomes a tool to legitimize territorial claims and further political agendas. (34) This Part of the Note does not attempt to adjudicate these historical disputes but rather...