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The politics of law in a post-conflict UN protectorate: privatisation and property rights in Kosovo (1999–2008)

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Abstract

This paper investigates the design and implementation of Kosovo’s post-war privatisation regime with reference to the policy ideas developed and negotiated within the bounds of Kosovo’s international transitional administration (UNMIK). Drawing on constructivist analyses of institutional change, we rely on semi-structured interviews with international officials and a review of legal documents to argue that the process of institutional change was driven largely by a contest between conflicting legal norms, rather than a contest between politically organised interest-based groups. International legal experts mobilised various competing normative paradigms residing in the background of policy debates to persuade domestic political actors that privatisation was in their interest, and to legitimise or disqualify the proposed neoliberal privatisation programme. However, the lack of consensus on the background paradigm ushered in a protracted period of ideational contestation. Privatisation in post-war Kosovo was essentially about the ‘politics of law’, as the legalisation of privatisation policy led inevitably to the contentious politicisation of legal norms.

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Notes

  1. In this paper, we do not discuss the privatisation of ‘publicly owned enterprises’, such as Kosovo’s electric utility KEK. Since under the Yugoslav law these companies were owned by the state rather than by society as a whole (and were not under the leadership of workers’ councils), their privatisation was governed by a separate body of law.

  2. Just ‘Trepça’ hereafter.

  3. For instance, Harvey (2003) calls privatisation programmes in the developing world ‘the cutting edge of accumulation by dispossession’ (157–61). Parenti (2002) has argued that ‘the ultimate goal [of Western military intervention in the Balkans] has been the complete privatisation and Third Worldization of Yugoslavia’, in order to ‘replace the social wage with a neo-liberal global free market’ and sustain the penetration of Western corporate capital (19).

  4. Campbell distinguishes between cognitive and normative constraints on policy programmes, labelling each with a different name: ‘paradigms’ the former and ‘public sentiments’ (Campbell 1998: 385) or ‘normative frameworks’ the latter (Campbell 2002). For simplicity, here we include both types of background constraints (that is, normative and cognitive) under the label ‘paradigm’.

  5. Interview with former international staff of Kosovo Trust Agency (KTA), Pristina, 8 May, 2013.

  6. UNMIK Regulation 1999/1.

  7. UN Security Council Report (S-1999–779), p. 9.

  8. Available at http://ec.europa.eu/enlargement/archives/seerecon/calendar/1999/events/kdc/sd/unmik.htm (accessed 1 August, 2014, emphasis added).

  9. Interview with former international staff of KTA, Pristina, 8 May, 2013. See also LLA (2002).

  10. UNMIK Regulation 2000/1.

  11. UNMIK Regulation 1999/24.

  12. The political conception of property rights can ultimately be traced back to Thomas Hobbes’ idea that property rights are created by the sovereign, while the legal conception can be traced back to John Locke and the natural rights school.

  13. UNMIK Regulation 2002/12, June 2002.

  14. Interview with UNMIK official, Pristina, 15 April, 2013.

  15. UNMIK Regulation 2003/13, Section 2.

  16. The existing JIAS were converted into PISGs, when the latter were established with the May 2001 Constitutional Framework.

  17. The agency was formally independent of both UNMIK and the PISGs.

  18. Interview with BSPK representative, Pristina, 29 April, 2013. Much of what follows is also based on this interview.

  19. UNMIK Regulation 2003/13, Section 10.1.

  20. While an earlier USAID-supported proposal had envisaged that 60 per cent of the shares of the NewCOs should be distributed to the workers, the shares allotment was later replaced by a monetary compensation and the figure was arbitrarily reduced down to 20 per cent, in line with an EC-World Bank proposal (EC, World Bank 1999).

  21. Interview with senior UNMIK official, Pristina, 15 April, 2013.

  22. UNMIK Regulation 2002/12, Section 5.3. See also UNMIK Regulation 1999/24.

  23. Within Kosovo, KTA personnel was subject to functional immunity (UNMK Regulation 2000/47).

  24. Mostly, the ethnic-Albanian appointees from Kosovo’s PISGs, but also Ahmet Shala, an ‘international’ appointee from Albania (interview with long-standing observer of privatisation process in Kosovo, 6 May, 2013).

  25. Some even go as far as alleging that the establishment of the Special Chamber on Kosovo Trust Agency Related Matters — an international judicial review mechanism placed under Kosovo’s supreme court — reflected a deliberate scheme hatched by Kosovo’s international administrators to transfer legal liability onto domestic institutions (Knudsen 2013: 9).

  26. The UN’s refusal was driven by uncertainty as to whether the UN or the EU was responsible for granting diplomatic immunity (interview with senior UNMIK official, Pristina, 15 April, 2013).

  27. Only two of these companies (including Elektromotori, a former Gjakova/Djakovica-based subsidiary of Slovenia's white-goods manufacturer Gorenje) were eventually recognised as genuinely worker-owned and released from KTA’s jurisdiction in 2004.

  28. This proposal is premised on a political conception since property rights are not seen as side-constraints: their distribution may be altered to rectify past injustices in non-economic domains and promote inter-ethnic reconciliation.

  29. As Blyth (2002) notes, ‘following uncertainty reduction, ideas make […] coalition-building possible’ (37).

  30. UNMIK Regulation 2005/18, Section 5.1 (a).

  31. UNMIK Regulation 2002/12, Section 2.2. (a).

  32. UNMIK Regulation 2005/18, Section 2.2. (c).

  33. UNMIK Regulation 2005/18, Section 5.4 (b).

  34. Knudsen (2013: 12); interview with senior UNMIK official, Pristina, 15 April, 2013.

  35. The Special Chamber on KTA Related Matters (see note 31). UNMIK Regulation 2005/48, Section 27.3 (c).

  36. UNMIK Regulation 2008/27, Section 5.3 (b).

  37. Arguably, adopting legislation based on the political conception of property rights confers the governing coalition greater discretion in managing the privatisation process, and hence a wider leeway to use privatisation to reward political supporters.

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List of interviews

  • Interview with former international staff of KTA, Pristina, 8 May, 2013.

  • Interview with UNMIK official, Pristina, 15 April, 2013.

  • Interview with BSPK representative, Pristina, 29 April, 2013.

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Acknowledgements

We would like to thank John Gould, Grahame Thompson, Antje Vetterlein, Janine Leschke, Tanja Aalberts and Jeffrey L. Dunoff, as well as three anonymous referees for their invaluable comments on earlier versions of this paper.

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Authors and Affiliations

  1. Copenhagen Business School, Department of Business and Politics, Steen Blichers Vej 22, 2000, Frederiksberg, Denmark

    Maj Grasten

  2. Department of Politics, University of Otago, Postgraduate Annexe, 117 Albany Street, Dunedin, Aotearoa, 9001, New Zealand

    Luca J Uberti

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  1. Maj Grasten
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Correspondence to Maj Grasten.

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Grasten, M., Uberti, L. The politics of law in a post-conflict UN protectorate: privatisation and property rights in Kosovo (1999–2008). J Int Relat Dev 20, 162–189 (2017). https://doi.org/10.1057/jird.2015.4

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