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Legal and institutional transplant in international transitional administration: The example of property rights in Kosovo
Örebro University, Department of Behavioural, Social and Legal Sciences.
2008 (English)Independent thesis Advanced level (degree of Master (One Year)), 10 credits / 15 HE creditsStudent thesis
Abstract [en]

A home, or other kinds of properties, constitutes a kind of symbolic and practical security for many people. In the context of post-conflict surroundings; the property and housing sector often present illegal occupation and widespread destruction. This makes it difficult for internally displaced persons to return to their homes. Therefore, in the end of conflict, the property and housing sector often require substantive reforms. When the local leadership is either insufficient or too weak as to effectively lead the reconstruction efforts, this task is, sometimes, conducted by international transitional administrators (ITA) such as United Nations Interim Administration Mission in Kosovo (UNMIK).

It is argued in this paper that the way a legal and institutional transplant is performed determines the outcome of the transplant. Accordingly it is not the content of the law which is important; rather, it is the transplant process. It is possible to discern four steps of the legal and institutional transplant process: the first step consists of the internal will and demand to reform, and, the second and third step consists of the legal and institutional reform and the fourth step consists of creating access. Especially in the law- and institution making, it is important to promote local participation and to ensure a degree of local ownership. Through the whole process it is important to adapt the law and institutions to local contexts such as culture, economy and social structure. UNMIK encountered several problems when trying to consider these steps in the reform of the property and housing sector. In order to promote participation and to ensure ownership UNMIK established local consultative bodies. These were meant to help UNMIK to legislate, e.g. property law, and to establish key institutions, e.g. property agencies. But this consultative process faltered due to rivalries between Kosovo-Serbs and Kosovo-Albanians. As UNMIK could not accept the demands and suggestions from the Kosovo-Serbs or Kosovo-Albanians UNMIK took all key decision above them. Thus, UNMIK could not obtain an answer, in the initial phase, on the seminal question how the transplant process should be performed. Once UNMIK decided upon the applicable property law and property institutions, UNMIK appointed local legal experts on domestic property law in order to promote participation and ownership. Those were mandated to comment upon new property legislation and to represent the local community, which was, of course, difficult due to the ethnic divides. Accessibility to the law on property rights and to the property agencies was provided but due to lack of resources the Kosovo Property Agency (KPA) could not fully fulfill the task of disseminating information to the general public.

The case of Kosovo illustrate how complex and difficult it is to reform the property and housing sector in a post-conflict society. The purpose of transitional administrators such as UNMIK is to support the reform of law and institutions but, as in the case of Kosovo, it turned out that UNMIK became a coercive force which imposed changes without the very important public approval. From this paper, one can conclude that a legal and institutional transplant process should not be performed with a ‘heavy footprint’, such as in the case of UNMIK, but with a ‘light footprint’ where the international actors support the reform rather than impose it and where the main actors in the transplant process are from the local community. In this way, there is a higher probability that the transplant will take root in its new legal environment. However, while the theory on legal transplant suggests a ‘light footprint’ approach, this is difficult to achieve in post-conflict zones, such as Kosovo, due to e.g. lack of national leadership and ethnic divides.

Place, publisher, year, edition, pages
2008. , 39 p.
Keyword [en]
Law and development, post-conflict
National Category
Law
Identifiers
URN: urn:nbn:se:oru:diva-4953ISRN: ORU-JPS/RÄT-AG-2009/0028--SEOAI: oai:DiVA.org:oru-4953DiVA: diva2:139257
Presentation
(English)
Uppsok
Social and Behavioural Science, Law
Supervisors
Examiners
Available from: 2009-10-14 Created: 2009-10-14 Last updated: 2009-10-15Bibliographically approved

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