Final status for claims (as submitted to Express, and published on 17 April 2006)

Henry H. Perritt, Jr.


Kosovo’s new political leadership can be proud of its early success in increasing international respect for Kosovo’s ability to govern itself effectively and to make changes in political leadership when that seems appropriate.  The success of an independent Kosovo can be assured only by a continuation of results-oriented, focused top leadership.  A further hallmark of Kosovo’s effectively functioning democracy is that the political opposition cooperated in making the changes. Fatmir Sejdiu, Agim Ceku, Ramush Haradinaj, Hashim Thaçi, Veton Surroi and others are exercising commendable leadership


There is, however, much work to be done both to win independence through the final status negotiations, and to build a foundation so that an independent Kosovo will be successful and fulfill the hopes and dreams of all of its peoples.  Many of the hallmarks of success already are receiving serious attention by final status negotiators and observers of the negotiations.  One matter, however, deserves greater attention than it has received in the past:  a mechanism for resolving competing financial claims growing out of Kosovo’s difficult past. 


Part of the final status negotiations must be the design and initial implementation of an appropriate mechanism for resolving competing property and contract claims incident to housing disputes, privatization, pension funds, and past public investment in Kosovo’s infrastructure. 


Quite recently, headlines in Belgrade asserted that Serbia continues to pay the costs of benefits that accrue to the government and people of Kosovo—in this case am overly general headline growing out of controversy over the privatization of ski facilities in Brezovica.


Many such controversies exist over competing claims to SOE property, over claims to pensions, over claims to recover public infrastructure investment, over claims for personal injuries, and over claims to assets owned by the government of Serbia and the past Yugoslavia.


Addressing these issues and settling the claims may seem like an esoteric matter that could wait to be addressed until well after final status for Kosovo has been implemented.  But the problem cannot wait.  Resolving these conflicting claims conclusively will require an international mechanism.  Serb interests will not trust the legal institutions in an independent Kosovo to make binding decisions.  Kosovar interests will not trust Serb institutions to make binding decisions.  International creditors and asset holders will not trust either system of national institutions.  After final status negotiations are concluded, a good opportunity to forge the necessary international institutions will have been lost, and it is far from clear that any set of stakeholders will have the muscle, after independence, to force others in the international community to pay attention to their claims or their decisions. 


Now, however, with international attention focused on the final status negotiations, and each side being pressed to make concessions, enough leverage exists to force people to pay attention to claims resolution.


About 18 months ago, I wrote a law review article on possible claims resolution machinery for Kosovo, as part of a symposium on final status for Kosovo held in Chicago and jointly sponsored by Chicago-Kent College of Law the University of Prishtina Law Faculty, The Chicago Council on Foreign Relations, the McCormick Tribune Foundation, and Northwestern University’s Center for International and Comparative Law.  In that article, I did not promise the final answer, but instead described models that had been used in other contexts, which may be promising for Kosovo.  For Kosovo, the most interesting model would be an international claims resolution tribunal, agreed to by the governments of Kosovo and Serbia, and also supported by major financial institutions in the major powers.  This claims resolution tribunal would have jurisdiction to make final decisions with respect to governmental and private claims and would have control over assets potentially subject to those claims.  It would displace litigation in national courts over a defined universe of claims.


The government of Kosovo should make sure that a serious discussion of these and other models should begin in the discussion of economic issues scheduled for early May.