Tampering with Treaties: Kosovo President Seeks Judicial Advice on Ratification

Abstract

The president of Kosovo is asking the Constitutional Court whether letters he exchanged in the spring with the European Union about an advisory rule-of-law mission should be ratified by the parliament. But this seemingly straightforward question could impact war-crime prosecutions and peace negotiations between Kosovo and Serbia. The president’s petition should be rejected because it raises no constitutional issue that would help the president exercise his powers, and the Court has no authority to review international treaties once they’re ratified or made effective. If the Court admits the petition, it should decide that the exchanged instruments could be ratified by presidential signature alone. They do not amount to a political matter or transfer of sovereignty, which would require parliamentary approval. Furthermore, the letters are an administrative agreement implementing commitments made in previous treaties and a recent constitutional amendment. In any case, this year’s letters may not undo existing obligations.

Keywords: constitutional law, international treaties, executive agreements, ratification, head of state, parliament, EU, Special Court, jus cogens