The EU Action to Protect the Environment in Kosovo and to Fight Environmental Crime
Teresa Fajardo del Castillo
Kosovo is one of the poorest and most polluted countries in the world. Environmental harm and environmental crime in Kosovo are a consequence not only of the tragedy of war but also of endemic poverty and a weak state institutional system prone to corruption and organized crime. In this scenario, is it possible for the European Union (EU) to export its legal model of environmental protection to Kosovo, including the possibility of protecting the environment through criminal law? To answer this question, in this chapter I examine not just EU’s efforts to introduce environmental protection in the negotiations that led to the Stabilisation and Association Agreement of 2015 with Kosovo but also the new Kosovo
T.F. del Castillo (*)
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R. Sollund et al. (eds.), Fighting Environmental Crime in Europe and Beyond, Palgrave Studies in Green Criminology,
legal order with its political, economic, and human contexts that pose innumerable problems to the protection of the environment. Shaping Kosovo into a democratic country that abides by the rule of law and adheres to the basic principles of law and justice is a long-term project despite the efforts of the last decades: the peace-building intervention and the international administration of the United Nations in which the EU played a crucial role (Blockmans and Wessel 2009). The transformative effect of the international intervention and the instrumental role played by the laws adopted by the Provisional Institutions of Self-Government resulted in a new entity distinct from Serbia (Hay 2014). The Constitutional Framework for Provisional Self-Government adopted in 2001 by the United Nations Mission under the mandate of Security Council Resolution 1244/99 (UNMIK) established that
the Provisional Institutions of Self-Government shall be responsible for aligning their legislation and practices in all areas of responsibility with relevant European and international standards and norms, with a particular view to facilitating closer economic, social and other ties between the people of Kosovo and other Europeans, and in awareness that respect for such standards and norms will be central for the development of relations with the Euro-Atlantic community. (Morina et al. 2011, p. 283)
Since the adoption of this resolution, the EU has exercised a tutelage over Kosovo to produce not just an exemplary legal system on paper but also to build capacity where success depends on enforcement and compliance of new laws but also on the legitimacy of the EU’s intervention in the region. However, Kosovo is still in the making.
Kosovo as a new entity faces many challenges in its efforts to protect the environment. There has been no effective environmental protection in the past, but now as an autonomous government under the watch of the EU one of its many goals is to establish the necessary degree of governance to enforce an environmental legal framework, which has its origin in legislation adopted by the UNMIK. Kosovo must now incorporate the EU environmental law acquis, the entire body of laws adopted by the EU to protect the environment in order to comply with its commitments. Before the 2008 declaration of independence, the
Kosovo Provisional Institutions of Self-Government adopted environmental legislation taking into account EU environmental law standards. Thus, the Law on Nature Conservation had as one of its aims to bring ‘environmental standards in Kosovo into harmony with those of the European Union’.
After the declaration of independence, this legislation has been complemented and in some cases repealed by new environmental laws that continue to envisage incorporating the EU environmental acquis, given that accession to the EU is a long-term goal. In 2012, Kosovo adopted a new criminal code that foresees in its Chapter XXVIII criminal offences against the environment, animals, plants, and cultural objects. However, this primary law needs to be fully developed through secondary legislation. From a legal point of view, an environmental crime is any serious infringement of administrative and criminal laws protecting the environment. However, in order to establish the existence of these environmental crimes, law enforcement agencies need standards of protection to be adopted through secondary legislation whose infringement would trigger prosecution. Despite the fact that most environmental statutes are already adopted and in force, most indicators of compliance such as limits of admissible spills, standards of emissions, standards of quality or the designation of zones of protection still have to be incorporated in the laws of Kosovo before new laws protecting the environment can be put in place that include punishment for the most serious damage to the environment. Kosovo’s fledgling legal system, in which environmental harm derived from human activities has been criminalized but for which prosecution is not yet in place, makes it necessary to consider non-legal definitions of environmental crime.
On paper, Kosovo has a basic legal framework to protect the environment and to fight against environmental crime but no institutional capacity to enforce it. Most of the difficulties in implementing and enforcing this legal environmental regime are related to the general 
problems of weak administrative infrastructure and judiciary, corruption, and organized crime (Fajardo 2015; Perrielo and Wierda 2006). These problems are aggravated by the lack of public and private sectors capable of assuming responsibility for services still carried out by the state, UNMIK, or the EULEX, the EU Mission for the Rule of Law in Kosovo. The informal sector is providing most of the environmental- related services, such as domestic waste treatment and basic energy supply, but this has resulted in environmental harm. In some cases, the recently adopted legislation is still being contravened, for example, the illegal harvesting of trees for heating fuel is one of the most serious environmental issues facing Kosovo. The lack of waste management throughout the country is also a challenge. Who is liable for environmental pollution must also be resolved before private companies, including the energy sector, can resume mining and industrial activities. Privatization of coalmines in the country has been considered one of the most important drivers of Kosovo’s new economy. However, environmental protection has not been a part of mining history in Kosovo, and at the present, environmental legislation is not being enforced as evinced by the Trepca Mine, opened in the thirteenth century, which is one of the country’s primary sources of air, soil, and water pollution. The Trepca Mine is also the source of lead poisoning that is affecting internally displaced members of Roma, Askhali, and Egyptian ethnic minorities who were resettled near the abandoned facilities of the mine by the United Nations authorities during the international administration (Bejtullahu and Dobrushi 2005).
The building of a new society and a new economic order that leave behind the war and its damage has not yet been attained. The war has left Kosovo segregated into ethnic areas where the central government nor EULEX do not intervene (Weber and West 2014), much less protect the environment. For example, there are considerable environmental problems in the Serbian municipalities of Kosovo that require a solution but are beyond the control of the Kosovo authorities (Kemp et al. 2013). There are no comprehensive official data on those areas in domestic or European reports (MESP and KEPA 2014).
-  See Law No. 02/L-18 on Nature Conservation available at http://www.assembly-kosova.org/common/docs/ligjet/2005_02-L18_en.pdf.