Final Status for Kosovo: Untying the
Gordian Knot
Report and “Map” of Possibilities
Henry H. Perritt, Jr.
Andrew Baruch Wachtel
The current
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 solution and
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 develop under international tutelage and prove capable of exercising
them. The Resolution mandates, without
setting a deadline, a determination of “final status”
for Kosovo through a process influenced by the Rambouillet
Accords.
Disagreement
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
Ultimately,
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.
2) The
insistence by political leaders in
Although few
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 borders). Therefore, continued devolution of power from
UNMIK to the Provisional Institutions of Self Government ("PISG") and
any conceivable good faith application of the standards implementation plan
through the remainder of 2004 and in 2005,
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?
The
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
Under this
approach the majority Kosovar Albanian population is encouraged to meet
standards which they often perceive as being unrealistically lofty,
not merely for Kosovo but for any modern state.
And the Kosovar Serbs are told that the goal is the creation of a
multi-ethnic state despite little evidence that there are any realistic
possibilities for their security.
Despite being unpalatable to both Kosovar Albanians and Serbs, this
route remains attractive to the international community because it appears to
present the fewest short term risks and requires the fewest hard decisions . This scenario is likely to be seen
as maintenance of the status quo by the population of Kosovo, especially if
privatization is not restarted promptly and effectively and if statements by
UNMIK and major powers indicate skepticism about Kosovo’s ability to move past
the standards implementation plan into a significantly different phase of final
status negotiations by mid 2005.
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
also shownindicated, such an act is
unlikely. There is, however, a second
route to determining the final status of Kosovo: direct negotiations between
Pristina and Kosovo. If such a bilateral solution were to be
achieved it would have enormous advantages, not only over the obviously
unstable status quo but even over an international decision should it be
forthcoming. By voluntarily ceding all
or some of the
It will be
immediately argued, however, that current political realities in to
a hardening of positions and fragmentation of practical political authority.
Human experience
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, the fear of military hostilities
or withdrawal of economic aid in the international context. Presently, in Kosovo there is no such action
forcing event. Things will continue
pretty much as they are in the absence of a negotiated agreement, and neither
side finds continuation of the status quo acutely intolerable.
Accordingly, an
effective strategy to induce serious negotiations between Pristina and
Those interested
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 the parallel structures that have
been set up from 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.
Negotiations
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.
Moreover, the
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
In
community,
managed to maintain peace, stability, sovereignty and territorial integrity.
Signed after the violence that took place during the Spring
of 2000, the Ohrid Agreements provided substantive
democratic reforms to preserve the independence, sovereignty and territorial
integrity of the
Kosovo’s final
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.
Resolution of
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
first
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.
Systems for
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.”
More
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 Kosovo
“army”—be integrated into a security regime that promotes rather than threatens
stability? What role should NATO continue to play?
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.
Local Mitrovica
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 returns and property rights as
well as the future role of Serbia in Kosovo. Serious efforts need to be made by
domestic and international actors to turn this major setback into an
opportunity.
A significant
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.
A lot
is at stake in Kosovo. What is at stake is fulfillment of the aspirations of 2
million Kosovar Albanians for democracy and self-determination, as well as the
aspirations of 7 million Serbians to be accepted fully in
But
more is at stake than that. This is a time for the shaping of a new
international order based on peace and security, and a time to
prove that international political missions—especially multilateral ones—can
succeed. Kosovo is a highly visible experiment. Inertia and fear of political
risk will only give too much breathing space to cynicism and nationalist
political forces, not only in Pristina and
Contributing to
the conclusions presented in this report was a policy and legal symposium on
final status for Kosovo that was held in
The symposium
was jointly sponsored by the Chicago-Kent College of Law at the Illinois
Institute of Technology, the University of Prishtina
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.
The symposium
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.