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Radical Kosovo Constitution Removes all Protection for the Unborn and Traditional Family

Cedes interpretation of social norms to UN international human rights bodies

By Susan Yoshihara, Ph.D.

NEW YORK, February 20, 2008 (C-FAM.org) - On Sunday, the province of Kosovo declared independence from Serbia and now has four months to adopt a new constitution. The draft constitution, which is circulating now, would transform the traditional Muslim and Orthodox Christian society by removing all legal protection from unborn children and granting special rights on the basis of sexual orientation. Additionally, the draft document cedes the interpretation of social norms to international human rights bodies centered at the United Nations.

Article 25 of the draft document on the "Right to Life" removes protection from the unborn stating that, "every individual enjoys the right to life from birth," and Article 26 grants "the right to make decisions in relation to reproduction in accordance with the rules and procedures set forth by law," further giving each Kosovar "the right to have control over his/her body in accordance with law."

The draft constitution specifically ensures that "no one shall be discriminated against on the basis of … sexual orientation" but gives no special protection to the traditional family. In fact, the English version of the draft article on the "Right to Marriage and Family" leaves out mention of men and women, stating only that "Based on free will, everyone enjoys the right to marry and the right to have a family."

"Direct applicability" of eight international treaties would be imposed once Kosovo adopts the constitution, including the Convention on the Elimination of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child, and the International Covenant on Civil and Political Rights and its Protocols.

The committees appointed to monitor each of these treaties have come under fire recently for misinterpreting the documents to include abortion and other controversial ideas specifically left out of the documents by the nations that negotiated them. Nonetheless, the draft constitution states that interpretation of the rights contained in the documents will rely on "the case law of the European Court of Human Rights and other international bodies that oversee the implementation of internationally guaranteed human rights."

The draft constitution was initially authored in 2004 by a non-governmental organization (NGO) called the Public International Law and Policy Group (PILPG). One of its authors, Professor Bruce Hitchner of Tufts University told the Friday Fax that the constitution has essentially maintained its original form and that after the NGO drafted it they passed it to the Venice Commission, an advisory body of the Council of Europe. According to Hitchner, European lawyers evaluated and assessed the document and Americans also worked on it "quietly."

The Venice Commission, established in 1990 to assist former communist countries' transition to democracy, gave it to the Constitutional Commission of Kosovo. The chairman of that commission, Professor Hajredin Kuci, stated this week that "commission members will visit municipalities and organize meetings" inside Kosovo for public comment on the document before it reaches the 120-day deadline for adoption mandated by UN Secretary General Ban Ki-moon on March 26, 2007.

Both the United States and the Holy See are members of the Venice Commission though it is unclear if either government was aware of the radical nature of the new Kosovo constitution.

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