Speaking of two types of power, the Court spoke about the power that creates the Constitution and the power that is created by the Constitution. By making this distinction, the Court removed the dust of the ancient concepts, that taught us that the creative power, original, of a nation, is never completely consumed. This constitutional and political discourse had been elaborated for the first time by French Revolution theorists, led by Benjamin Constant. It is clear we do not intend to speak here about Benjamin Constant, as the initial apex of the French Revolution, for its subsequent critic, the reasons why he compared Napoleon Bonaparte with the barbarians of Asian steppes, and so on. We intend to speak here about the distinctions the Court made between the creative power, pouvoir constitutant, and the created power, pouvoir constituee, and the distinction between radical democracy and the one controlled by constitutional mechanisms, such as: division and balance of powers, rule of law, respecting human and minorities rights, and so on. With its decision, the Court put a stop on the theoretic and practical illusion that states that the expression of a nation’s will for self-determination is consumed with an initial action of creating the state. In addition to this, the Court, with this decision, put a stop to another illusion that states that democracy implies the unconditional and unlimited rule of the majority, without any institutional guarantees, or any other mechanism that defends the others that do not belong to the majority.

In relation to the overthrowing of the first illusion, the Court decided against the predictions of the compilers of the question, pointing out that the authors of the Kosovo Declaration of Independence were not equal to Provisional Institutions of Self-governance, PISG, and that their mandate was grounded in an original act of Kosovo citizens, and not Security Council’s Resolution 1244.

With this conclusion, the court removed the dust of the doctrine of Benjamin Constant and other theorists on the distinction between the creating and created power. This approach from the Court disappointed all dogmatists, who attribute to international justice a fetish quality, it does not possess, according to which territorial integrity and sovereignty of states are sacred and can never change under any circumstances, regardless of internal policies that states use to govern their citizens. Same disappointed was experienced by the British, when they believed that American colonies could endlessly tolerate them, then the Spanish at the beginning of 19th century as well as the French in middle of last century, whom had grounded their policies on illiberal colonial premises. This powerful point of view, on which stands the opinion of the ICJ, brings me to the second point of view, that of radical democracy and the level of tolerating it in a constitutional democracy.

In relation to this the Court pronounced that it is not its duty to deal with states’ internal models of democracy. However, the strong defense the Court has given to creative power and the extraordinary elaboration of this concept, necessarily imply that Kosovo has earned the right to exercise the original power, not unconditionally and unlimitedly. That this is so, it is clearly seen from the Declaration of Independence of 17 February 2008, operationalized to the last point in the Constitution of Kosovo that is in power, pursuant to which Kosovo is presented as a constitutional democracy based on the division and balancing of the power, in respecting human and minorities rights, in the rule of law and democracy. In one word, although the Court did not say, because it was not and it is not its duty, still it was clearly understandable that the way Kosovo would follow after the declaration of independence would be the constitutional democracy grounded on the main postulates of modern western constitutionalism. Postulates of our constitution embody in its provisions John Locke’s philosophy, regarding the will of those governed as sublime, Montesquieu’s philosophy regarding the division and balance of powers, and the philosophy of Edward Coke regarding the emphasis on civil freedoms.