Kosovo’s possible attitude towards normalization with Serbia

By Professor Dr jur, Dr phil Marc Weller, MA, MALD, PhD, FCIArb

Once the genie is out of the bottle, it is difficult to return her to her constraining prison. The newly installed government of Kosovo has taken its time in assessing the prospect for a resumption of negotiations about normalization of relations with Serbia, and in offering its perspectives on the process. This approach is correct in principle, but now risks being overtaken by events. Recent developments, including the publication of a mysterious ‘non-paper’ from an anonymous source on the Brussels dialogue, have forced the pace.

Kosovo will need to formulate its basic approach to the forthcoming negotiations if it does not wish to be a mere passenger in a train that is bound to depart fairly soon. Kosovo will need to help shape the negotiating environment and the expectations of the other side and the facilitators.

Here are ten brief principles that could guide Kosovo’s attitude in the matter. These do not, of course, reflect the views of the Kosovo government in any way, but are offered entirely independently by the author.

1. The negotiations are about normalization of relations, not about statehood.

Kosovo has been a success as a state for over 13 years now. It is widely recognized by the majority of states in the world, is a member of a range of international institutions and has contributed to peace and stability in its region. At Serbia’s own request, the lawfulness of Kosovo’s declaration of independence was confirmed by the international Court of Justice. Serbia herself introduced General Assembly Resolution 64/298 into the General Assembly. In the resolution, the UN membership unanimously acknowledged that finding. Kosovo’s status as a state is not in doubt and cannot be the subject of further negotiations.

2. There is no second helping for Serbia

As Kosovo is a state, it is not prepared to make ever further concessions in order to become a state. Given its unique situation, Kosovo accepted many derogations from its sovereignty and many special commitments and provisions for the benefit of ethnic communities and others upon its independence. In particular, it fully accepted all aspects of the Ahtisaari Comprehensive Plan for Kosovo. These were faithfully translated into Kosovo’s constitution and are implemented in daily life through Kosovo legislation and practice. Reasonable demands of Serbia for a status settlement were fully accommodated under international supervision. There is no case for re-opening these commitments and re-negotiating them, affecting the established and internationally validated constitutional order of Kosovo. Kosovo has done its part and there can be no second helping for Serbia, adding yet further demands.

3. Normalization is about benefits for the people

The normalization dialogue is based in General Assembly Resolution 64/298, sponsored at the time by Serbia and acknowledging the finding of the International Court of Justice on Kosovo’s declaration of independence. The resolution, endorsed by the whole of the UN membership, establishes the principal aims of the dialogue process. These aims are progress by both parties on the path to the European Union and the improvement of the lives of the people. Kosovo is committed to achieving these two aims effectively and efficiently, both within the context of the Brussels dialogue and independently of it. In this spirit, Kosovo supports a continuation and intensification of the normalization dialogue as a means of pursuing the interests of their respective populations. It is in this spirit that Kosovo has supported the dialogue process thus far, and that it will continue to support it.

4. The normalization process needs to be reviewed and improved

The normalization process, initiated in 2011, has yielded a whole host of agreements, most recently supplemented by the US-mediated Washington agreement of September 2020. Many of these agreements would, if fully implemented, contribute to the improvement of the lives of the respective populations. However, implementation has been very patchy indeed. Kosovo has noted the lack of implementation on the Serbian side through its regular reporting to the EU. However, its diligent reporting and complaints have remained without any effect. Instead of securing the implementation of the initial agreements, more and more were added. It is now time formally to review the status of the various undertaking that have been achieved, to form an authoritative view on compliance, and to ensure actual implementation. The Brussels normalization process should establish a track of discussions devoted towards that end. The commitments made can, after review, be added to by additional agreements where necessary and in the common interest. This should include strengthened mechanisms to ensure implementation and a binding dispute settlement mechanism.

5. Kosovo will offer a strategy for completing the normalization process by the end of 2022

Kosovo will offer a strategy for addressing the remaining issues in the normalization process which is to be completed within one year. This includes the review of existing commitments emanating from the normalization process thus far as noted above, and the negotiation of further agreements where in the common interest according to an agreed sequence and time-frame. Kosovo will also address the overall modalities for arranging the future relations between Kosovo and Serbia according to a listing of basic principles Kosovo will put forward. Based on these principles, Kosovo will address other elements of its future relations with Serbia. These include the confirmation of existing boundaries which are inviolable and will not be changed, a commitment to peaceful intercourse and the advancement of the interests of the respective populations, a commitment to fundamental human rights, full and effective equality for all, men and women, full respect for the rights of communities, the establishment of diplomatic relations between both states, and the institution of the appropriate mechanisms for settling disputes. Kosovo believes that the overall package of measures that will result should enter into force once Kosovo’s membership in the United Nations has been secured and Security Council 1244 (1999) has been removed. Kosovo will also seek a binding undertaking that its eventual accession to the EU (and to other instruments and organizations) will not be obstructed.

6. Kosovo will find its own ways for addressing additional issues and will introduce these into the dialogue

Kosovo fully accepts its responsibility for all elements of its population, whatever its ethnic, linguistic, religious or other outlook or orientation. Serbia appears to take on the role of arguing for an extension of the rights of the ethnic Serb population of Kosovo. In reality, these arguments are aimed at diluting the legal personality and exercise of jurisdiction of the Kosovo institutions over the territory of Kosovo. Kosovo will not accept the creation, or ratification, of parallel institutions of governance in Kosovo. Experience since the 1990s in other places demonstrates that such approaches do not heal the wounds of war. Instead, they tend to deepen ethnic division and make such divisions permanent by institutionalizing them. In any event, according to the Ahtisaari package, Kosovo has instituted what may well be the world’s most advanced system of community (minority) rights protection. It will now rapidly present the draft law on the Community/Association of Serb municipalities as foreseen in the first Brussels Agreement of Principles on Normalization of Relations of 2013, fully compliant with its constitution. Kosovo will also engage with the representative organizations of the ethnic communities in Kosovo. It will seek their views on whether the existing, highly advanced provisions for their protection and promotion could be enhanced even further. This will include the organs of the Serb Orthodox Church and of the Serbian community organizations. Kosovo will openly report the outcomes of this review in the Brussels dialogue, along with any further provision for communities it may adopt in the light of this review. Kosovo will be happy to memorialize any additional steps it may decide to take in the context of the dialogue.

7. Reciprocity

Kosovo expects that its own efforts will be reciprocated by Serbia. It is looking forward for Serbia to report in the context of the Brussels dialogue on its provision for the ethnic Albanian and other communities, including in particular those in the regions bordering Kosovo. Steps that might be taken by Serbia to enhance the protection and promotion of such communities should be considered, along with action that both sides might take together to enhance the lives of ethnic communities divided by the state border. Kosovo will offer its own draft law on the establishment of a Community/Association of municipalities as a model for Serbia to consider in relation to areas mainly populated by ethnic Albanians, along with other elements of legislation, including its law on communities and the statute of the Community Consultative Council. It will also be interested to hear about the views of non-dominant religious groups throughout Serbia, including those of Muslim and other faiths, about the way their interests and concerns are addressed in Serbia.

8. Legacy Issues

Given the painful legacy of the recent past, it will be necessary to address a number of issues relating to the period of confrontation and conflict. Most painfully, there needs to be, finally, rapid, effective and comprehensive closure in relation to the issue of the disappeared and killed during the conflict, including the recovery of the bodies. While Kosovo has been subjected to a whole series of mechanisms of accountability for past actions, there still is a vacuum in this respect on the side of Serbia. It will be difficult to make the fresh start in relations with Serbia until and unless Serbia, too, is willing to confront its own responsibility for the commissioning of systematic international crimes, including sexual violence, killing and torture. Kosovo is most willing to help facilitate and to contribute to a joint commission addressing past history, along with other steps of transitional justice and a mechanism for compensation for those most injured in the conflict. It will also support the establishment of a friendship fund to address both the past and the future. This includes a dignified memorial for all victims of the conflict, whatever their political orientation or ethnic appurtenance. Kosovo also insists on the commitment, already contained in the Ahtisaari Comprehensive Proposal, that the objects of historical and cultural significance taken from Kosovo before, during and after the conflicts must be returned. The same applies to the archives, official documents and records that were taken.

9. Financial Issues

Kosovo was economically and fiscally disenfranchised during the final decades of administration by Serbia. It was deprived of its fair share of infrastructure, investment and provision of public services. Kosovo does not believe that it would be liable to a share of former Yugoslav public debt, or that it owes compensation in relation to socially or publicly owned property and other claimed rights based on its territory. Rather, it has calculated the damages caused to the state and to its citizens by the Belgrade authorities before and during the conflict. These claims far outweigh any financial claims that could be advanced against Kosovo and Kosovo reserves its right to raise them in the dialogue. Moreover, Kosovo will insist on compliance with Serbia’s obligations concerning state pensions and other payments owed to individuals

10. Future

Kosovo is willing to make a new beginning in relations with Serbia, despite the difficult past history and the suffering that was experienced by so many of its citizens. It is willing to entertain innovative schemes for enhancing mutual interests, such as the exploration of joint uses of cross-border resources, including water, the creation of economic zones featuring investment and development incentives, etc. Kosovo is also keen to encourage contacts from citizen to citizen, including in particular among the young, and joint or cross-border cultural activities.

Marc Weller is Professor of International Law and International Constitutional Studies in the University of Cambridge and author of Contested Statehood: Kosovo’s Struggle for Independence, Oxford University Press, 2009. He served as an advisor for Kosovo in the Ramboulliet and the Ahtisaari negotiations. The views in this article are the author’s alone and to not reflect the position of any government or institution.