Final Status for Kosovo: Untying the Gordian Knot
Report and “Map” of Possibilities
Henry H. Perritt, Jr.
Andrew Baruch Wachtel
stalemate in Kosovo is unstable. UNMIK cannot continue much longer as the
structure for international political trusteeship of the territory. If
political leaders in Kosovo and
The situation on
the ground now in Kosovo could be described as a stalemate. De facto, Kosovo is an independent state in
many respects but de jure prospects for independence
are cloudy. Kosovar Albanian political
leaders believe that both international law and the facts on the ground entitle
them to de jure statehood and insist that the
international community should provide an unambiguous timetable for
independence. At the same time, Serbian
political leaders in
None of these positions by itself can lead to a long-term solution that serves the legitimate interests of Kosovar population and of the entire region. Rather all three groups will have to modify their positions.
The history of
Kosovo reflects centuries of conflicting ethnic myths and nationalist
aspirations. The historic conflict
infects political analysis,
with poisoning efforts to focus on a
21st Century solutionand
instead attempting to redress insults from centuries before. The energies of
the Serb and Kosovar Albanian stakeholders must be focused on the future rather
than on developing and presenting competing interpretations of history.
1) Kosovar Albanian arguments for independence are not sufficiently powerful by themselves to guarantee international support for a Kosovar state. Why not?
The Preamble to
Security Council Resolution 1244 acknowledges the sovereignty of the
continues over the proper interpretation of UN Security Council Resolution
1244. Some legal commentators read it
unambiguously as providing for restoration of full sovereignty in
however, determining final status for Kosovo is not primarily a legal
issue. If a new Security Council
Resolution is required to replace or clarify 1244, the positions taken by
Security Council members will not be determined on the basis of law but on the
basis of political considerations within those countries. In our view, even if Kosovo demonstrates that
it is “ready” for independence by satisfying all of the UNMIK-articulated
standards and makes compelling legal arguments in favor of its position,
In sum, it is our view that Kosovar Albanian political leaders are making a mistake if they believe that the international community is simply going to declare that they will become a sovereign state. Recent threats by some leaders to propose a referendum on independence in order to force the hand of the international community, may help make it clear that the status quo is untenable, but a referendum in favor of independence by itself would accomplish little, leading at best to Kosovo’s coming to resemble Northern Cyprus. A Kosovo that becomes independent through unilateral action would be challenged to build a sustainable economy, to maintain public order, to extend its writ into areas now under the practical control of parallel institutions taking their direction from Belgrade, as in north Mitrovica, and, no doubt, to protect its borders against military encroachments—all without international assistance.
insistence by political leaders in
If the UN
mandate for the international civil and military intervention were simply to be
terminated and the international community decided to withdraw unilaterally,
the practical reality would be an independent Kosovo (although not necessarily
within its current
inevitably will strengthen this de facto independence.
No scenario for final status of Kosovo is worthy of serious consideration unless it takes these “facts on the ground” into account.
Any plan for
restoring sovereignty to
3) The international community’s position is moribund. Why?
international community, through UNMIK, has adopted a gradualist policy that
avoids as much as possible dealing with the final status of Kosovo. The present
course envisions the PISG continuing to develop its civil governance capacity
and intensifying its work on technical issues related to final status through
the Prime Minister’s working groups, involving Kosovar Serbs and contact with
approach the majority Kosovar Albanian population is encouraged to meet
standards which they often perceive
As the violence
of March 2004 shows, however, the international community cannot control what
has been going on in either Kosovo or
It is easy to see from the above analysis not only that each of the positions described above cannot lead by itself to a solution for Kosovo but, even worse, that they work at cross purposes and lead to a situation that makes finding a solution ever more difficult.
It is hard to
escape the conclusion that Kosovo eventually will become independent. Different as they are, the three positions we
have described above are all predicated on an expectation that final status for
Kosovo will be achieved by an act from above—a kind of “grant” from the
international community. But as we have
shown, such an act is
unlikely. There is, however, a second
route to determining the final status of Kosovo: direct negotiations between
It will be
immediately argued, however, that current political realities in
in all kinds of negotiations—international, litigation-settlement, and
labor-management—shows that parties are not likely to make the hard decisions
and significant concessions necessary to negotiate resolution of a difficult
issue in the absence of some action forcing event—a strike or lockout in the
labor-management context, the possibility of an adverse jury verdict or an
expensive trial in the lawsuit settlement context,
effective strategy to induce serious negotiations between Pristina
in resolving the final status issue for Kosovo must be more energetic in
exploring the variety of “carrots” and “sticks” that could be action
forcing. Under all the scenarios we
envision, a failure to achieve a negotiated solution within the time allotted
would trigger a reconfiguration of the international presence in Kosovo. If both sides were perceived as contributing
more or less equally to the failure of negotiations, the international
community would simply pull out, leaving a small force just south of the Ibar river to prevent Serbian incursions into almost 100%
Albanian territory and to protect the most historically and culturally valuable
Serbian monasteries. Failure under this scenario likely would be accompanied by
a formal declaration of independence and statehood by the Assembly of Kosovo,
possibly accompanied by a referendum, hoping for recognition by a critical mass
of states of Kosovo’s status as a sovereign state. It would then be up to
individual world governments to recognize or not to recognize the rump Kosovo
as an independent state. If sufficient numbers of them did so, Kosovo would
have achieved de jure independence under
international law. Thus, the results of
a pullout under these circumstances would be the partition of Kosovo along
ethnic lines and a bleak future for Serbs (approximately some 75,000 of them)
who live south of the Ibar river. It would also put off for a very long time
any consideration of EU membership for both
It is easy to
imagine that neither side would be happy with such an arrangement, thereby
leading them to negotiate seriously to find a better solution. It is also easy to imagine, however, that for
a variety of reasons one side or the other would not act in good faith. If this were to be the case, the
international community must also have articulated differentiated “sticks” to
punish the bad faith actor as well as “carrots” to reward the good faith
actor. If the former turns out to be the
Serbian leadership, it is not hard to conceive of a proper incentive
package. The international community
would recognize Kosovo in its 1974 borders, and move its forces to control
those borders, dismantling
it would lead to complete chaos if
implemented, precisely the kind of chaos that the original NATO invasion of
1999 was launched to prevent. Still,
such a threat, along with a promise that some international troops might remain,
but now to help the Serbs create a modern European regime in the province,
would probably be sufficient to get the Kosovar Albanian leadership to the
table and keep them there.
between Pristina and
Competing perceptions of history and current reality, enormous mistrust, and lack of experience in participating in tough international negotiations would likely undermine negotiations without skillful mediation.
The international community must find a way to engage Serbian and Kosovar Albanian representatives through an ongoing mediated process, in which the parties and the mediator allow all options to be "on the table," and the mediator credibly can adjust incentives depending on the possible failure, as the process evolves, of one or the other party to negotiate in good faith. If the Kosovar Albanians, for example, refuse to respond with constructive proposals to apparently legitimate Serb concerns on a particular issue, the international mediator must be in a position to threaten a scenario in which statehood for Kosovo is less likely. Conversely, if Serb negotiators are intransigent, the mediator must be in a position to threaten a scenario in which the Serb minority is left to is own devices in an independent Kosovo dominated by ethnic Albanians.
international community, as well as the local stakeholders, must accept a
negotiation in which everything is "on the table." In order to
mediate final status negotiations, the international community must abandon its
preoccupation with the possibility that final status for Kosovo would have a
kind of “domino effect” on other countries in the Balkans, inviting a variety
of claims to redraw borders in an attempt to create mono-ethnic states. Final
status negotiations for Kosovo widely are perceived as presenting special risks
for the future stability of
status will undoubtedly influence
Fear of movement
toward creation of a “Greater Albania,” which long has encouraged paralysis in
international efforts to address final status, should be set aside. No credible
evidence exists that political leadership in
Formulating an action-forcing strategy and gaining sufficient support for it, and structuring adequately sophisticated mediation, will take some time. In the meantime, important work can proceed on issues that must be resolved in any event, including formulating an economic program for Kosovo, developing deeper legal analysis of constitutional alternatives, including frameworks for protecting minorities, organizing regional security arrangements, and making progress on the Mitrovica problem.
Kosovo presently experiences nearly 60% unemployment and a balance of payments deficit of similar magnitude. Early international efforts to reform the economy were stalled for several years because of uncertainty among UN legal advisers as to whether Resolution 1244 authorized reform of laws and property ownership. Now, although it is generally agreed that the UN mandate is broad enough to cover economic reform under the concept of “political trusteeship,” no coherent vision exists for building a self-sustainable economy.
Any viable final status for Kosovo, regardless of its political acceptability, depends upon Kosovo having a sustainable economy, one capable of producing about 30,000 new jobs per year. Given Kosovo’s size and lack of access to ocean commerce, economic success depends upon regional integration. It also depends upon attracting foreign investment, which in turn requires continuing and accelerating the privatization process, which got off to a successful start in 2003, but has since been stalled for nine months by uncertain UNMIK leadership. Privatization must be resumed promptly, not only because some enterprises may attract investment as going concerns, but because privatization is essential to free up substantial amounts of real property now controlled by non-operating socially owned enterprises on the privatization list.
Kosovo has been participating constructively in a variety of regional economic activities through its Prime Minister’s Office, but because it lacks sovereign status,it is not a formal member of the Southeast European Stability Pact. This often means that Kosovo gets left out of consideration for strategic planning as for transportation routes and may lack the “clout” to insist that other countries in the region pay attention to Kosovo’s need and potential. Serious work is necessary on allowing Kosovo to participate in its own name in international regimes governing telecommunications, air transportation, international finance and regional economic planning, even without it formally being a “state.” The operating procedures of the Stability Pact should be revised to permit Kosovo to participate as a full member without waiting for further action on final status.
Discussions about institutional mechanisms to promote regional economic integration should be intensified. Trade and customs policies for Kosovo and for all the countries in the region should be shaped by the concept of a “Balkans Without Borders.”
The UN and the EU should give much higher priority to market-oriented economic development. Economic development still tends to take a back seat to other priorities for Kosovo, even in the recent Standards Implementation Plan.
final status will almost certainly require the establishment of some mechanism
to resolve claims arising from the Kosovo conflict and the period of UN
administration. The Yugoslav Succession
Agreement will represent a persuasive model for apportioning governmental
assets and debts, but this agreement does not cover private claims, such as
pensions, and business and residential property, which are especially important
in the case of Kosovo. A broader
mechanism to encompass these claims must fill gaps in the existing
Special-Chamber and Housing Property Directorate regimes, and usefully can be
modeled on the International Claims Commission established by the UN after the
Privatization of socially-owned and publicly-owned enterprises in Kosovo is necessary to attract investment and create jobs. Regardless of the number of SOEs and POEs that can be viable as going concerns, privatization is necessary to remove clouds on the title of real property with access to infrastructure. The nine-month interruption of privatization beginning in October 2003 was a serious blow to economic development and to public confidence in the ability of existing institutions to produce economic progress.
Privatization must be restarted immediately, without the delays certain to result from fundamental reworking of operating or bidding policies. Any gaps in effective recourse of claimants to remedies for deprivation of property rights in the Special Chamber of the Kosovo Supreme Court should be fixed forthwith.
Essential preparatory work for final status negotiations should be undertaken, including review of alternative constitutional frameworks, giving special attention to protection of minorities, and to decentralization
Although the content of any constitution for the final status of Kosovo will emerge only from negotiations, it would be helpful for opinion leaders and political and legal experts to begin sketching the outline of such a constitution. In particular, they should evaluate the constitutional framework under UNMIK Regulation 2001/9 and identify specific features of that framework that would be unsuitable for final status.
They also must begin some serious work on identifying concrete options for decentralization of governmental power, drawing on the experience so far with distribution of power between central PISG institutions and municipal governments, and evaluating the suitability of foreign models such as the German, U.S. and Canadian federal and municipal "home-rule" systems and the Swiss and Belgian models for distributing political power in a multi-linguistic polity.
Attention must be given to legal structures that would back up formal legal protection of minority rights with internationally-supervised and backed enforcement mechanisms, such as linkages to the European Court of Human Rights.
Final status negotiators must understand their options for protecting the rights of minorities in Kosovo, including Serbs, Roma, Turks, and Bosniacs, to equal treatment under the law, to be free of physical threats to their security, and to equal economic opportunity. Experts must develop sophisticated alternative proposals for a mix of local and international legal regimes to assure protection of human rights.
There are four basic ways to protect minority rights in the Kosovo context:
None of these approaches is sufficient by itself. Ultimately, of course, the best protection for minorities is a pluralistic, democratic political culture in which multi-ethnic tolerance is the norm. While this is surely the long-term goal for Kosovo, it is insufficient in the context of Kosovo’s transition from its present status to a more independent status because of uncertainty with respect to the eventual political makeup of an independent Kosovo and because of mistrust in the political process.
A special rights regime comprises criminal and civil laws that impose duties on public institutions and private persons not to single out minorities for adverse treatment. These laws can be local (“municipal”) or they can be international in origin. Whatever the source of minority rights protection, special-rights regimes will not be effective without meaningful enforcement institutions, backed up by international authority.
ensuring proportional representation in legislative bodies or co-governance and
executive bodies may be an appropriate part of an overall program for protected
minority rights but such approaches are insufficient by themselves. Minority representatives in an assembly may
be out-voted every time. Co-governance
arrangements in executive institutions often lead to paralysis in
decision-making, as they did in
Territorial autonomy envisions protecting minorities by allowing them to concentrate in certain geographic areas and to have substantial political autonomy over their own affairs. The efficacy of such decentralization approaches depends upon the geographic distribution of population by ethnicity and on the practical workings of institutions designed to maintain the intended balance among multiple levels of government. Relying mostly or entirely on territorial autonomy to protect minority rights will lead to further relocation based on ethnicity, with its attendant disruption of lives and spawning of disputes.
Ultimately, any negotiated solution likely will include a combination of the four approaches, a political commitment by independent sovereign institutions to equal protection, special rights regimes, backed up by international enforcement machinery, proportional representation in legislative, if not executive institutions, and decentralization to allow local governance according to the political will of local populations with differing ethnic make ups. Protection of minority rights will be at the center of any discussions or negotiations over final status for Kosovo. Progress will require abandoning simple positions such as, “make us independent first and then we will erect the institutions to protect minority rights,” “you can’t even negotiate final status until minority rights are fully protected,” and “the only way to protect minority rights is to partition Kosovo.”
work needs to be done to define the alternatives for regional security after
KFOR leaves Kosovo.
How can an independent Kosovo be protected from overwhelmingly superior
military power possessed by
Mitrovica is a microcosm for all of Kosovo. Mitrovica’s division and unresolved political status reinforce its social and economic crisis and fuel ethnic tensions. The uncertainty over Mitrovica’s future keeps the town trapped in a downward spiral, and poisons Kosovo’s future.
The Mitrovica problem provides an opportunity for confidence building. An urgent effort by Kosovar Albanian and Serb political leaders, assisted by international mediation, to negotiate a solution for Mitrovica could be a "practice round" for broader-scale final status negotiation and mediation.
political leaders and the international community need to show leadership in
confronting the double challenge of state-building and economy–building. The
Kosovar Albanian leadership needs to offer a credible and realistic proposal to
the Serbian community living in Kosovo and engage in direct negotiations with
breakthrough in returns, property restitution and transforming the role of the
2004 package proposal presented by the NGO ESI (European Stability Initiative)
to local leaders, or it could result in mono-ethnic separation.
The ESI package, http://www.esiweb.org/, comprised three elements: full resolution of property rights and restoration of freedom of movement in 2004, the development of a joint development and assistance strategy for Mitrovica region and the redrawing of municipal boundaries to create a majority Serb but multi-ethnic North-Mitrovica and Zvecan municipality.
the conclusions presented in this report was a policy and legal symposium on
final status for Kosovo that was held in
was jointly sponsored by the Chicago-Kent College of Law at the Illinois
Institute of Technology, the University of Pris
Law Faculty, the McCormick-Tribune Foundation, Northwestern University’s Center
for International and Comparative Studies and the Chicago Council on Foreign
Relations, and organized by Henry H. Perritt, Jr. and Andrew Baruch Wachtel.
One-and-a-half days were devoted to presentations of papers, accompanied by discussion, allowing those presenting papers to interact with each other and with other interested persons. The proceedings took place at Chicago-Kent College of Law.
built on the results of a symposium on final status held in Pristina in July
, 2002, sponsored by the htina
This report, authored by Professors Perritt and Wachtel, synthesizes multiple views and positions expressed as a “map” of interests and outcomes that can assist policy makers and commentators better to understand areas of agreement and disagreement. An issue of Chicago-Kent’s Law Review, to be published in the Fall of 2004, will contain law review articles prepared by some symposium speakers analyzing specific legal aspects of final status, accompanied by other formal submissions exploring historical, political and economics contexts within which final status must be addressed.
The Symposium website, http://operationkosovo.kentlaw.edu/symposium, contains other information about the symposium, the full text of papers prepared in conjunction with the Symposium, and links to other relevant materials.
This report draws upon diverse—and often, conflicting—views and opinions expressed at the symposium. It represents an effort to synthesize from those views an identification of major areas of agreement, major areas of disagreement, a “map” of underlying interests, and to suggest various practical possibilities for moving forward.
The actual language used in the report is the work of the co-organizers, Professor Perritt and Professor Wachtel. The report does not necessarily reflect the views of any of the sponsoring institutions; nor does it necessarily reflect the views of any individual participant except for the co-organizers.