The agreement for Kosovo's membership in the Peace Board, initiated by the President of the United States of America, Donald Trump, was not processed for approval in the Assembly of Kosovo. The Parliamentary Committee on Foreign Affairs did not approve on Tuesday the draft law for the agreement signed by former President Vjosa Osmani on January 22, after the Vetëvendosje Movement had objections to Article 2 of the draft law and requested that it be amended.
Professor of International Law, Enver Hasani, said in an interview with Gazeta Express that this could "never" happen, calling the behavior of the LVV deputies in the parliamentary committee "total immaturity."
"The Assembly can unilaterally change its own laws, but not Kosovo's international commitments," he says.
If MPs have objections to the content of the agreement, Hasani says that according to international and constitutional standards, "the same procedure according to which the agreement or treaty was concluded must be followed."
"When there is no consent from the other party, then any attempt to change the treaty or basic agreement is an insult to the other party, a lack of seriousness on the part of the party taking that step and is considered a departure from the treaty or agreement, legally signed by the head of state of Kosovo, in accordance with the Constitution and the law of the country."
Hasani says that Kosovo "must clarify with the American side whether it intends to withdraw from its commitment to membership in the Peace Board. Membership in the Peace Board cannot be done separately from full acceptance of each provision of the Peace Board Charter."
Gazeta Express: The Parliamentary Committee on Foreign Affairs has not approved the Draft Law on the Agreement on Kosovo's Membership in the Peace Board, with the Vetëvendosje Movement objecting to Article 2 of the draft law and requesting that that article be amended. Can the Assembly amend the content of an international agreement that has already been signed by the President, or in legal terms should it be ratified as such, without any interference with the text?
Hassan: Never. This is total immaturity. MPs should ask the legal department at the Ministry of Foreign Affairs, if they don't know, and they will show them the international standards on when and how a treaty signed by the head of state, head of government and foreign minister, but which has not passed the ratification procedure in the Assembly, can be amended. The Assembly can unilaterally amend its own laws, but not Kosovo's international commitments.
In this specific case, we are talking about the Charter of the Peace Board, which has the status of a treaty or international agreement according to Article 18.1 of the Constitution of Kosovo, which deals with alliances, as well as political and military matters.
Gazeta Express: If MPs have objections to certain wording (such as in Article 2), what is the appropriate mechanism: amending the accompanying draft law or renegotiating the international agreement itself with the signatory parties?
Hassan: According to Article 18.4 of the Constitution of Kosovo, which is also reflected in the Kosovo Law on International Agreements, “amendment or withdrawal from international agreements shall have the same decision-making procedure as that of ratification of international agreements.”
This is an international and constitutional standard of all civilized countries, so the same procedure must be followed according to which the agreement or treaty was concluded.
Gazeta Express: What are the legal and international consequences if a state attempts to ratify an agreement with unilateral changes to the content?
Hassan: It produces no legal effect for the other party, unless there is an agreement between the parties, or unless the other party subsequently accepts such changes to the basic treaty or agreement.
When there is no consent from the other party, then any attempt to change the treaty or basic agreement is an insult to the other party, a lack of seriousness on the part of the party taking that step, and is considered a departure from the treaty or agreement, legally signed by the head of state of Kosovo, in accordance with the Constitution and the law of the country.
Withdrawal from a treaty or international agreement, according to the Vienna Convention on the Law of Treaties, is made according to the procedure provided for in the treaty itself (Article 54). In the absence of such a provision, withdrawal is permitted only in special cases specified by the convention (Article 56).
Gazeta Express: Is clarification required with the American side regarding Kosovo's withdrawal from its commitment to membership in the Peace Board, and should its Charter be fully respected as a condition for membership?
Hassan: Kosovo should clarify with the American side whether it intends to withdraw from its commitment to membership in the Peace Board. Membership in the Peace Board cannot be done separately from full acceptance of each provision of the Peace Board Charter.
Here too, the Constitution of Kosovo is clear, because it follows the standard of Western civilized countries. In Article 20.2 of the Constitution, which regulates the transfer of sovereignty, it is expressly defined as follows: “If a membership agreement ratified by the Republic of Kosovo for participation in an international organization explicitly requires direct implementation of the norms of this organization, the law by which the membership agreement is ratified is approved by the votes of two-thirds (2/3) of all deputies of the Assembly, and those norms have precedence over the laws of the Republic of Kosovo.”
A qualified two-thirds majority is required for both membership in an international organization and ratification of an international treaty or agreement under Article 18.1 of the Constitution. Here we are dealing with two specific situations related to the Peace Board.
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