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At the same time, these arrangements enable the international community to maintain some kind of link to the domestic judiciary through the presence of international judges. There is, nonetheless, a concern: the very links to the international community that are meant to foster stable and viable local judicial institutions may end up undermining local capacities and legitimacy. In many ways, these tensions lie at the heart of international law. Declaring its intent not only to internationalize but also to universalize the values it promotes, international law nonetheless contains within it a set of impulses that risk appearing to advance the particular interests of the international community’s dominant members to the detriment of local development.
Addressing this risk requires examining the practical interaction between local communities and hybrid courts. It also requires assessing any perceived democratic deficit resulting from this type of international involvement, as well as the impact of international involvement on local courts’ long-term efficacy and development into legitimate judicial authorities. Several important questions arise from these arrangements, suggesting both their advantages and limitations. How effective are hybrid institutions as productive centers for international and multicultural collaboration? How do hybrid structures balance and interact with the other primary representatives of the international community in post-conflict areas? What are the pathways for the promotion of the rule of law in such frameworks?
This Essay addresses these questions by examining the early experience of the Constitutional Court of the Republic of Kosovo as a relevant and timely case study. Following Kosovo’s declaration of independence on February 17, 2008, authorities began preparing for the establishment of the Constitutional Court of the Republic of Kosovo. Until the end of the international supervision period provided for in the Comprehensive Proposal for the Kosovo Status Settlement (CSP), the court’s nine judges not only will reflect Kosovo’s multiethnic society but also will include three international judges appointed by the International Civilian Representative in consultation with the President of the European Court of Human Rights. The court began issuing decisions in late 2009. It has already been involved in a number of controversial and politically sensitive cases, including most recently a judgment that the President of the Republic of Kosovo, Dr. Fatmir Sejdiu, committed a "serious violation" of the constitution. This judgment led to the President’s resignation on September 27, 2010.
Recent scholarship has offered a critical appraisal of the involvement of the Office of the High Representative in the establishment of the transitional Human Rights Chamber in Bosnia and Herzegovina, a previously established post-conflict hybrid body. While recognizing the difficulties in ensuring an effective form of hybridity and the legitimate integration of international standards into domestic law, this Essay aims to show that the new example of Kosovo's Constitutional Court—and the engagement of the International Civilian Office as part of the CSP arrangement—can offer useful instruction on how international institutions can serve to consolidate, rather than undermine, democratic legitimacy in post-conflict contexts. Drawing on insights from both local and international actors involved in designing and establishing the Constitutional Court, this Essay re-examines the potential to reach beyond the international-national dichotomy and to understand the foundations of sustainable and legitimate capacity-building in the implementation of hybrid arrangements.
