Building a New State and a New Society through Constitutional Design: Is the External State Building working in Kosovo?

Paper Delivered by Roland Gjoni, Lecturer of Constitutional Law at the Political Studies Association of UK, 19-21 April 2011, London

I.

Introduction

An increasing amount of literature on comparative constitutionalism inquiring the major constitutional systems has emerged in the last 30 years. The constitutional models explored tend to differ from one another in the ways they attempt to legitimate the political authority and embody common goals, aspirations and values of a polity (Ulrich K. Preuss 1995 in Dorsen, Rosenfeld, Sajo and Baer 2005). According to constitutional scholars, the constitutional identity of a state depends a lot on the preexisting political culture, the values and beliefs it purport to harmonize and the bonds shared by people with diverse linguistic, religious and ethnic backgrounds in the newly created society [Rosenfeld 1998]. Generally speaking, all constitutions claim to mark a new era in the history of a given political community by improving the institutional framework, re- allocating powers between state institutions or advancing human rights protection. For example, there are constitutional systems claiming to either create a new democratic state of citizens living under a common legal system (French system), strengthening pre-constitutional bonds of an old nation with common language, culture and ethnicity (i.e German system or) transitioning from a dictatorial regime into a democratic system (Spain) (Jackson and Tushnet 2003). The grand objective of a new beginning is particularly claimed by post conflict constitutions designed to end a conflict between different belligerent groups. In the latter case, the accommodation of diverse ethnic, linguistic, religious or racial interests and backgrounds is done through some form of power sharing, territorial autonomy or a plethora of devices combining these two which is generally referred to as complex power sharing (Wolf 2010). Where internal divisions are severe and ethnic ruptures cannot be meddled without some external help, the constitution making process is influenced by the international community. External state-building has been recently experimented in divided societies in UN, EU and US in Bosnia, East Timor, Sudan, Nepal and other post conflict society. The new Constitution of Kosovo adopted after a failed attempt to produce a negotiated settlement between Serbs and Albanians, leading to Kosovos independence is both a transformative and externally sponsored one as it was drafted with heavy international involvement. Through power sharing, territorial decentralization and advanced protection for
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minority rights, the new Constitution attempts to simultaneously form a new state and a new national identity which is neither Albanian nor Serbian but a Kosovar one embracing all ethnic groups Albanian, Serbian, Turkish, Bosniak and Roma living in Kosovo. This paper will describe the chronology of the ethnic distrust between Kosovo Albanians and Serbs which is still lingering regardless the cessation of hostilities in 1999 and the main features of the conflict which have determined the constitutional choices embraced by the international community. The main part will cover the constitutional mechanisms aimed at building the new multicultural and multi-ethnic society and how these mechanisms may affect the future of Kosovo. Finally, some conclusions will be drawn looking at the real prospects of conflict transformation through externally sponsored constitutional design given multiple countervailing forces in the identity and state formation. II. Background of the Kosovo Conflict and its main features

Kosovo a small, landlocked country of 10,887 km2, with a population estimated at 2 million (World Bank 2008). It is currently recognized as an independent state by 76 states after it declared independence on 17 February 2008. However, it Kosovo is not a member of the United Nations yet, Serbia contest its statehood and 5 EU member states have refused to recognize Kosovo. Since the collapse of the Ottoman Empire, Kosovo has been part of Serbia under different state formations (Joseph Marko 2008), except for a short period of time during the WW II when it was annexed by Italian and German occupying forced and united to Albania. Under the 1974 Yugoslav federal constitution, Kosovo was an autonomous province within the Republic of Serbia enjoying most of the prerogatives of a state including a parliament, a government and judicial system including its own Constitutional Court. Despite the fact that under Titos Yugoslavia, Albanians and Serbs avoided and outright violent confrontation, the distrust and hatred between them had its ups and downs and the tensions have mounted many times. In short, the Kosovos society never became a truly multiethnic society. However, the ethnic divisions deepened during the 1980s and 90s marking a turning point after the revocation of Kosovos autonomy by Milosevic in 1989. Albanians rallied around a newly formed political movement called Democratic League of Kosovo established by several prominent intellectuals and led by the popular leader Ibrahim Rugova who sought Kosovos independence by peaceful means. The limits of the non-violent movement became apparent after Dayton Peace Accords (1995) failed to address the Kosovo issue when an emerging armed group called Kosovo Liberation Army expressed its impatience with the peaceful resistance and eventually sought independence through insurgency. Serbias army responded to the KLA guerrilla style attacks with overwhelming military force causing civilian casualties and a massive displacement of Albanians to neighboring Macedonia, Albania and Montenegro.

To end the hostilities, in 1999, the EU and US convened the Rambouillet Peace Talks and proposed an agreement affording substantial autonomy short of secession to Kosovo but Serbia rejected it. On March 24, 1999, NATO launched sustained air strikes without a UN SC resolution and in June 1999, the Yugoslav Army in Kosovo surrendered and withdrew from Kosovo. The UNSC adopted Resolution 1244 recognizing Kosovo as an integral part of the Federal Republic of Yugoslavia and authorizing an international mission to establish provisional self-government structures pending determination of the final status. In May 2001, the UNMIK created central government institutions for Kosovo, known as the Provisional Institutions of Self-government (PISG): National Assembly, Government (i.e., Prime Minister and Ministries), President, and Supreme Court. Over the next several years, UNMIK and PISG worked to implement a series of standards promoting a Standards before Status designed to make Kosovo a multi-ethnic society. The efforts met with Albanians impatience with the status uncertainty and Serbs rejection of any initiative that would promote Kosovo as a self-governing entity (Marko 2003). In March 2004, simmering ethnic tensions resulted in two days of deadly riots which reminded internationals of that the underlying causes of ethnic conflict were still very active and it took very little to trigger them. 1 Recognizing the fact that status quo was untenable, on 7 October 2005 UNSG Kofi Annan appointed Former Finnish President Martti Ahtisaari to lead the UN Office of the Special Envoy for Kosovo (UNOSEK). 2 After fifteen rounds of talks, in March 2007, Ahtisaari recommended to Secretary-General Ban Ki-moon that Kosovo be granted independence, initially supervised by the international community through a civilian and military presence. Kosovo Assembly accepted the plan whereas Serbia rejected it entirely and urged Kosovo Serbs to withdraw from Kosovo government institutions. Renewed negotiations between Serbia and Kosovo brokered by EU, US ad Russia failed to produce an agreement and Kosovo unilaterally declared independence on 17 February 2008. Although the Ahtisaari Proposal was never adopted by the Security Council due to the internal division between Russia on one hand and US, UK, France and other western states on the other hand, Kosovo unilaterally incorporated its provisions in the new Constitution granting it a higher legal status in case of conflict between the provisions of the Constitution and Ahtisaari Proposal. Rather than a struggle between ethnic groups for domination, wealth or natural resources, the conflict in Kosovo is above all an identity conflict between Albanians and Serbs. Identity-based
In March 2004, following a drive-by shooting of a K-Serb and drowning of K-Albanian youth led 50,000 Albanians to simultaneously attack Serbs, Roma and UNMIK vehicles and facilities in 20 cities, leaving 19 dead and over 600 wounded. Some 550 Serb homes and 27 Orthodox churches were burned, and 4,000 K-Serbs fled. 2 Soon thereafter, the International Contact Group for Kosov consisting of UK, US, France, Germany, Italy and Russia adopted Ten Guiding Principles on the Future Status Talks of Kosovo. The three main principles were no partition of Kosovos existing territory, no return to the pre-1999 situation, and no union of Kosovo with another state or part thereof. Other principles included special protections for the Serb Orthodox Church and constitutional guarantees for ethnic communities and internally displaced persons (IDPs). Principle 4 emphasized that effective structures of local self-government established through the decentralization process should facilitate the co-existence of different communities (Contact Group, 2005).
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conflict is widely seen to be particularly difficult to manage (Larry Diamond, Juan J. Linz & Seymour Martin Lipset 1995). This is particularly true in Kosovo where there was low interaction between groups, almost no interethnic marriages or mixing prior to the outbreak of the violent conflict. The different state formations of Yugoslavia did not manage to mitigate the tensions between Albanians and Serbs caused by language barriers, religious differences and lack of interaction between ethnic groups. Hence, the role of international community in keeping the lid on the ethnic tensions has been crucial since the disintegration of Yugoslavia. The international negotiators drew the lessons from power sharing mechanisms used previously in the Balkans and weighted upon the applicability of the territory based solution which ended the bloodshed in Bosnia and a rights based approach compounded with territorial selfgovernance employed in Macedonia through Ohrid Agreement to end the armed conflict between Albanians and Macedonians. Seeking to identify the best mix of institutional mechanism that would keep Kosovo borders intact but provide guarantees for all non-Albanians communities, diplomats and international negotiators favored Ohrid model. However, each conflict has its own peculiarities therefore the Kosovos conflict resolution and constitution building process has been defined by the following characteristics: 1. Demographic imbalance. No official census has been conducted since 1981, but unofficial estimates put ethnic Albanians at 92 % of the population. Kosovo Serbs are estimated to compose more than 5 % of the populace, with ethnic Bosnians, Turks, Roma, Ashkali, Egyptian, Gorani, and smaller minorities of Montenegrins and Croats making up the remainder (Judah, 2007; Tansey, 2009; Woehrel, 2009).Albanians are the fastest growing and youngest nation in Europe whereas Serbs have lower birth rates especially in Kosovo where the poor economic conditions and lack of security have pushed youth to leave. Given the demographic patterns, the balance is not expected to change much even if all Serbs displace after the conflict return successfully to their homes. 2. Territorially Scattered Minority. About two-thirds of the K-Serb (roughly 65-70 thousand) population is clustered in small, rural settlements scattered over 20 southern municipalities with the few larger centers in central and eastern part of Kosovo such as Gracanica, Strpce, Partersh, Ranillug, Kllokot. (OSCE 2010). Another third of Serbs is concentrated in Leposavic, Zubin Potok, Zvecan, and northern Mitrovica, divided from the rest of the city by the Ibar River. The demography and lack of concentration is not conducive to the establishment of a regional autonomy or federalism as it would include only a minority of Serbs. 3. Language barriers. The majority of Albanians who are 30 years old and above are fluent in Serbian language although they are less inclined to use since the conflict. Contrarily, the majority of Serbs (regardless of age) do not speak Albanian and younger generations are even less inclined to learn it. More importantly, younger generations of both Albanians and Serbs do not speak the language of the other groups and generally identify it as the enemy language
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4. Religious differences. Albanians are predominantly Muslim though religion does not play an important part in public space. Serbs are all orthodox and for many Serbs, Kosovo is the cradle of the Serbian nation since some of the most important religious sites are located in Kosovo. However, some of the most important religious sites such as Patriarchs Seat in Peja/Pec, Visoki Monastery in Decan, Gracanica Monastery and Medieval Theological Seminary in Prizren are located in areas of Kosovo where Serbs currently constitute a very small minority. 5. Long Standing Hatred and Low Interethnic Interaction. Unlike Bosnia where Serbs and Bosniacs had a lot of interaction before the conflict, Serbs and Albanians never mixed. There are no interethnic marriages and the communication gap between younger generations has grown further since the conflict because the weak social fabric has been further torn by the post conflict communication gap and stereotypes fueled by segregated education systems and media outlets. 6. Kin state influence. The construction of the new nation is challenged by the countervailing forces. Serbia is a powerful mother state and continues to exert strong financial and political influence over K-Serbs spending between 300-500 million Euros per year in Serb inhabited areas in Kosovo. Although the Republic of Albania is less influential in daily politics of Kosovo, an increasing number of Albanians who are not happy with the multi-ethnic experiment and contested statehood see the union of Kosovo with Albania as a solution over the continued disagreements with Serbia. 7. Regional context. Since the collapse of the Ottoman Empire, Albanians have been living in five states namely Albania, Serbia, FYROM, Montenegro and Kosovo. On the other hand, Serbs are also present in Bosnia, Croatia, Montenegro, Kosovo and the Republic of Serbia is one of the guarantors of Dayton Accords. Partition of northern Kosovo through a military annexation or even through a settlement is impossible due to the immediate consequences it may have in other contested territories in the Balkans. For example, about 80 thousand Albanians live in the Preshevo Valley in 3 municipalities territorially adjacent to Kosovo who may see the partition as a part of a more comprehensive solution or border readjustment in the Balkans. On the other hand, the loss of north of Kosovo will strengthen the political forces advocating Kosovos union with Albania which could lead to ethnic mobilization and secessionist claims of Serbs and Croats in Bosnia or even Albanians in Macedonia. 8. Common Aspiration for EU integration. The only goal shared by Serbs and Albanians is the integration into EU. Ironically EUs soft power which is largely criticized for yielding limited results in crisis management is the lowest common denominator of Serbia, Albania, Kosovo, Croatia, Bosnia and FYROM. The conflict resolution model had to be informed such complex state of facts bearing in mind that the ethnic groups are very important for the regional stability, ethnic distrust is very strong, there is no clear territorial solution to the conflict since a majority of Serbs live in small rural communities and the religious sites are not in the northern municipalities adjacent to Serbia. The interaction in the public life is inexistent and nation building is under attack by other processes and dynamics including Serbias kin state influence and national re-unification of Kosovo with Albania. The EU membership is the only prize that may force all parties to push the secessionist
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tendencies in the short run allowing for a window of opportunity of the national building experiment.

3. The New Constitution: Power Sharing and Territorial Decentralization The constitution of Kosovo will mark its third anniversary on June 15, 2011. It was drafted within a short period of time with overwhelming international involvement and was adopted by the Kosovo Assembly unanimously. 3 Given that it was adopted right after the unilateral declaration of independence, is not designed to protect Albanians as the oppressed ethnic group (who got their state) but rather the Serb minority which in one way was ruling before the NATO intervention regardless of its demographic inferiority. Formally speaking, the Constitution is a very comprehensive one and has borrowed a lot from the global best practices of constitutionalism although the process was fraught with some exceptional fallacies. For example, the draft of the Constitution was only offered for a public discussion for a brief period of two weeks and finally the draft was not democratically voted in a referendum as most Albanians and Serbs would have either boycotted the process or rejected the draft. Finally, the draft was certified for compliance with Ahtisaari Plan by the International Civilian Representative who is superior to the Assembly of Kosovo. Overall, it is a rigid constitution as only a special majority of 2/3 of the majority and minority members of parliament can amend it. Its paramount objective is to pave the way for Kosovo to move from a conflict situation into a democratic and multi-ethnic society. The new constitution is seen as a unique case of nation building from above as it attempts to create a new state and a new society at the same time through power sharing and territorial decentralization. The complex power sharing is designed to eliminate the bitter ethnic tensions between the Albanian and Serb speaking population by creating a system of shared rule at the central level and self rule at local level through highly decentralized new local government units for the K-Serb community. So what is the solution that the new constitution offers? Due to the ethnic make-up of the state, the Constitution grants the power to the majority and rights to the minority. Given the lack of national cohesion, a system of a guaranteed shared rule at the central level and a high degree of self rule at local level is designed to incentivize elite cooperation of distrustful ethnic groups. 3.1 Non-ethnic Symbolism by Design The general provisions of the Constitution are designed to play down the concept of the state in favor of a multi-ethnic society by avoiding ethnic symbolism that is usually present in other
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Internationals have played a dominant role in the drafting and before approval it was certified by the International Civilian Representative.

Constitutions. The Preamble does not mention any of the communities, it only refers to We the people as the constitution making polity and bearer of sovereignty. Article 3 also declares Kosovo to be a multi-ethnic society consisting of Albanian and other communities. The state symbols are void of any ethnic reference and inclusive of all ethnic groups. Under strong scrutiny and pressure from internationals, a number of de-ethnicized symbols were approved albeit at the dissatisfaction of the Albanian majority. The parity of the languages is also ensured as Article 5 puts Albanian and Serbian at an equal level in order to be inclusive of a legacy of linguistic hegemony of Serbs as well as the new demographic superiority of Albanians. Turkish, Bosnian and Roma languages have the status of official languages at the municipal level when such communities exceed five percent of the population of a municipality. The list of national official holidays does not include any of the important days of the Albanian or the Serb communities, with the exception of the religious holidays for Muslim, Orthodox and Roman Catholic communities. Instead each community has been dedicated a randomly chosen day to celebrate such as the Albanian Community Day or Serbian community Day and so on for other communities. The flag, the seal and the anthem are the state symbols are designed in such a way as to reflect its multi-ethnic character. Kosovos flag is a blue background with six golden stars representing the six communities and the European perspective of the new state. The national anthem is called Europe and is simply a melody without lyrics, void of any reference to any specific ethnic group. Since 2001, the official currency of Kosovo is the Euro although Serbian dinar continues to be used in predominantly Serb areas and is more widely used in the northern municipalities adjacent to Serbia. 3.2 Power sharing at the Central Level and Asymmetrical Decentralization of Power at Local Level We will review the way power is allocated between the three branches of government (horizontal power sharing), the intergovernmental power division between central and local governments (vertical power sharing), the human rights mechanisms and the relationships between different ethnic groups based on a method developed by Wolff 2005, 2008. Firstly, the shared rule at central level is guaranteed through executive power as the Constitution requires that at least one minister and two deputy ministers from the Kosovo Serb community and if the number of ministries established by the Prime Minister exceeds 12 additional posts of 1 minister and 2 deputy ministers are required to be allocated to the non-majority parties. The concept of guaranteed representation in the legislative branch is carried over from the UNMIK eras Assembly as out of 120 seats, 10 seats are reserved for the Kosovo Serb Community and 10 seats for other smaller minorities.

Communities are also disproportionally represented in the judiciary as the Constitution requires that at least fifteen percent (15%) of the judges of the Constitutional Court, Supreme Court and appellate jurisdiction across Kosovo be reserved to non-majority communities. District courts are required to reflect the ethnic make up of the population of the municipalities constituting the district thus allowing for a balanced representation even at the first instance level. Representation is also guaranteed in the prosecutorial system, Kosovo Judicial Council, Ombudsperson Institution, Central Election Commission the state administration. Central versus local government relationships and dispute resolution mechanisms The local government and decentralization are entrenched in the Constitution but the detailed provisions on local government emanating from Ahtisaari proposal are enshrined in the Law on Local Self-government, Law on Administrative Boundaries of Municipalities, Law on Financing Local Governments and Law on Public Finance Management and Accountability. The new law on municipal boundaries increases the number of Kosovo municipalities from 30 to 38, out of which 10 will be governed by K-Serb community. Most of the new municipalities envisaged have been created with the notable exception of North Mitrovica Municipality where Kosovo Serbs resist the authority of new state and boycotts any election since the declaration of independence. In summary, the new laws provide for additional municipalities where the Kosovo Serb community would be in majority; more autonomy in collecting and utilizing the municipal revenues; asymmetrical competencies between majority Serb and Albanian municipalities; additional funds from the Kosovos central government to fund the additional competencies; unhindered links with the Republic of Serbia, including the right to receive financial and technical assistance from Serbia; the right to wide inter-municipal cooperation and jointly provide service; the right of municipalities to create municipal associations to defend and promote the local governments interest. Through a deeply asymmetrical decentralization, Ahtisaaris decentralization provisions provided ample opportunity for accommodating ethnic minority interests, and minimized the power of the central government to control or threaten. The Government of Serbia was granted privileged donor status, including the right to provide extra salary and technical assistance to municipal staff. Moreover, municipalities could receive money from Belgrade in private bank accounts, including payments of salary subsidies and pensions, subject only to notification of Kosovos Treasury. The entrenchment of local government in the Constitution and laws would not be meaningful if the central government would be able to arbitrarily intervene in the local decision-making and reverse its decisions. The dispute resolution mechanism provided by the Constitution and laws, takes into account the European Charter of the Local Self-Government adopted by the Council of Europe, which implies that the central government intervention should be proportional to the interests it aims to protect and that no sanctions can be imposed on the municipalities by the
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central government. To protect municipalities from an overreaching Albanian dominated government, the Constitution states that the administrative review of the local government acts by the central governments shall be limited to the review of legality. The legislation provides that vend if the central government believes that a certain of municipalities is allegedly unlawful, the government can only challenge municipal decisions and actions in the District court. Special administrative review procedures are provided regarding the right of municipalities to form inter-municipal cooperation and partnerships as well as cooperation with institutions of the Republic of Serbia. Due to the seriousness of the matter, in case the municipalities intend to engage with institutions of Serbia, the central authorities must review the draft agreements between municipalities in Kosovo and institutions in the and may enjoin amendments to the draft cooperation agreement, or if a serious breach of the law cannot be remedied otherwise. In such cases, the municipality can appeal to the district court the composition of which reflects the ethnic makeup of the municipality; therefore a majority Serb court would have to decide on the legality of the injunction issued by the central government authorities. Additional minority guarantees include legislative veto on issues of vital interest. This means that laws which affect identity cleavages, such as language, state symbols, cultural heritage but also municipal boundaries and powers can only be adopted and amended by a double majority procedure requiring that both the majority of the Assembly and the majority of minority MPs agree on changes. Based on the Ahtisaari Proposal and the Law on Special Protective Zones, about 45 religious and cultural sites of the Serb community are afforded special protection and no infrastructure enhancement, buildings or police operations may take place within the protection zone without prior consent of the religious authorities. 4. The Limits of the Power Sharing: Is the external state building working in Kosovo?

Building a new state and a new society is proving to be a daunting taks for the new constitutional design experimented in Kosovo. Three years after the Constitution, Kosovo remains a lowincome, post-conflict country with contested statehood struggling for international recognition and characterized by weak institutional capacity and state legitimacy. 4 Serbia continues to oppose the secession of Kosovo although on 22 July, the International Court of Justice answering to a question presented by the UN General Assembly (through a Resolution sponsored by Serbia) ruled the independence of Kosovo did not violate the applicable international law. In September 2010, Serbia succeeded in tabling another resolution to the UN SG calling for renew negotiations under the auspices of the EU. Serbia and Kosovo are currently engaged in talks facilitated by the EU designed to unlock potential for European integration amidst the firm position of Serbia of taking any step that would implicitly or explicitly be interpreted as recognition of Kosovo.
As of March 2011, 76 countries have recognized Kosovo but significant holdouts include Russia, China, Spain, Greece, Cyprus, Bosnia, Slovakia, Rumania, many Islamic countries, and, of course, Serbia.
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Although all institutions provided for by the Constitution are in place, the application of consociationalism has produced uneven success in building a functioning state and a multiethnic society. On the one hand, the protection against ethnic outvoting on identity related issues, decentralization of local government with asymmetrical powers granted to the K-Serb municipalities and the special relationship with the mother state has undoubtedly assuaged the Serb concern of suffering at the hands of Albanians. The fact that Kosovos borders are immovable unless the Constitution is changed and given that the Constitution cannot be changed by a referendum but only through a special majority (2/3 of majority and minority community MPs) beyond ethnic lines provides additional assurances to Serbs that an independent Kosovo is not just a step to create Greater Albania. Furthermore, the advanced protection of the linguistic, cultural and religious heritage creates conditions that Serbs not only stay in Kosovo but also develop their identity through links with the Serbia. Moreover, the power sharing and territorial decentralization has attracted some interest from the K-Serb community living in the southern enclaves of Kosovo. Serbs who largely boycotted the general elections before the independence organized in political parties which do not have its headquarters in Serbia. One of these parties Samostalna Liberalna Stranka (SLS) is represented in the new Kosovo Government with two ministers and four deputy ministers and other communities are also overrepresented beyond constitutional requirements. Serbs living in the newly established municipalities have shown increasing willingness to participate in the local elections resulting in a higher turnout than in other K-Albanian municipalities and the new municipalities are also run by Serb mayors who were not part of the political establishment before the independence. Serbs are receiving the legally provided asymmetrical funding from the central government effectively acting autonomously with no coercive involvement from the central government. Even though Serbs continue to contest Kosovos statehood, all institutions are currently multiethnic despite the fact that minority representation quotas may be filled without consideration to the qualifications required for the position. In contrast, the Serbs in Northern Kosovo resist any form of authority of the Kosovo institutions, have boycotted elections since 2004 and de facto operate as a part of Serbia since there is no border crossing, custom services or a court system in place. On the other hand, the school system does not foster bilingualism and interaction at local level as the Serb schools continue to use the curricula of the Ministry of Education of Serbia and teachers continue to be paid extra salaries from Serbia whereas Albanians have a different curriculum. Schools are totally segregated and textbooks are fraught with ethnocentric references teaching students two recent histories about their shared territory. The university level is also segregated with Serbs studying in the University of Mitrovica and Albanians in other universities across Kosovo. Two separate health systems are in place - one sponsored by the Republic of Kosovo serving non-Serb communities and a parallel health system for K-Serb community financed by Serbia. Public services in Serb settlement such as mobile phone communications, transportation and power supply continue to be offered by Serb companies as Serbia has redoubled efforts to entrench parallel structures and further separate northern Kosovo from the rest of the country (International Crisis Group, 2008a; Woehrel, 2009).
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Apart from the state radio and television, other print and electronic media outlets do not cater to a multiethnic audience having both mono-ethnic programs and workforce. Two separate civil societies exist doing very little work across their ethnic group and donor supported multiethnic activities have failed to build a grassroots ethnic reconciliation movement. There are no multiethnic political parties and elected officials only serve their personal or group interest failing to build bridges across ethnic rifts. Albanian dominated institutions do no fully respect the bilingualism requirement and where Serbs dominate institutions, the hardly use Albanian language in their daily work. Both the increased participation of K-Serbs at the central level and insulation of communities at local level have emerged at this state of the constitutional experience and nation building process. Despite the increased participation of Serbs in the Kosovo central and local institutions, the three years of the Constitution have shown the limits of over presentation of minorities in fostering the interethnic cooperation and national cohesion. The insulation of communities in small mono-ethnic municipalities is perpetuating the division and segregation in daily lives. The creation of a new class of politicians reaping the fruits of the power sharing and decentralization is not resulting in more interaction between ethnic groups or increased loyalty to common institutions and symbols. The obsession of international community to contain the conflict, achieve stability at any cost through overrepresentation of minorities is merely keeping the communities apart but is not conducive to building a new nation. Serbias firm position against the new Kosovar identity is undercutting the conflict transformation efforts and shifting the discourse from a right based into a territory based one using North as a way to challenge the territorial sovereignty and the finality of Kosovos independence. 5 EUs disunity over Kosovo is not conducive to building a new national identity which is neither Albanian nor Serb as a Kosovar identity cannot develop in a vacuum. Albanians and Serbs alike can hardly rid the vestiges of past and take pride in the poverty stricken, ethnically divided and contested new born state which has no clear EU perspective. At this point in time, the new Constitution instead of creating a new state and a new national identity has created a weak state founded on an overrepresentation heaven for non-minority communities driven by ethnic patronage and personal enrichment. It remains to be seen if the incentivized cooperation model of the central level or segregation at the local level would take hold in the future. The constitutional engineering may not yield the expected results if the power sharing and decentralization mechanisms are continuously under the attack of the EUs disunity over the status of Kosovo, unfettered influence of the Republic of Serbia in Serb areas and lack of economic development and rule of law making the creation of a shared public space and national cohesion difficult to emerge.
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On March 25, 2011, speaking at the Brussels Forum organized by the German Marshall Fund, Serbias President Boris Tadic stated that Everyone knows that there is no such thing as Kosovar citizens, there are only Albanians and Serbs living in Kosovo

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