What Kosovo will face in the normalization dialogue

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

Kosovo appears to be ready to appoint its negotiating team for the upcoming EU-led dialogue with Serbia. As the Kosovo Prime Minster sets out to define the strategy for the team, it will be helpful to consider the overall political situation, and the relative positions and interests of the respective players.

1. Interests

The interests of both sides are fairly obvious. Kosovo wants to consolidate its statehood. While it is clear that it enjoys that status in fact, a number of international benefits will be withheld from it until Serbia, the former sovereign, assents to that outcome de jure. This includes membership in the UN and other international organizations, recognition by an even broader range of states, including the present ‘hold-out five’ EU members that have refused recognition, and the possibility of eventual accession to the EU.

Serbia, on the other hand, wants to prevent or delay these same outcomes. While it is difficult to deny Kosovo’s existence as a matter of fact, it would be a major challenge for the government in Belgrade to translate this realization into formal recognition of Kosovo’s statehood, along with the necessary changes in its constitution. The constitution refers to Kosovo as an integral part of Serbia. If Serbia is meant to make this sacrifice, then it would demand major concessions on the part of Kosovo in return, and firm guarantees that it will be rewarded by the West. This would include a guarantee of rapid EU membership should this be wished by a majority of the population of Serbia.

Both sides have attempted to downplay what is at stake. Kosovo has discovered that it can actually live quite well without formal recognition by Belgrade. Similarly, the lack of formal representation at the UN is not a very major drawback. Even the continued nominal application of resolution 1244 (1999) has little consequence. In fact, the present situation gives Kosovo a regular platform in the UN Security Council in the shape of the periodic review there of the situation in Kosovo. And EU membership is a very remote prospect in any event.

Belgrade, in turn, is exhibiting a distinct lack of interest in EU membership—hitherto the principal carrot of the Western states to induce the countries of Central Europe and the Balkans to embrace political change. The Belgrade government has instead made much of its strong ties with the Russian Federation. President Putin is likely to continue wooing Belgrade, offering economic and other incentives to prevent Euro Atlantic integration on the part of its only firm ally at the heart of Europe.

2. Changing Political Context

The political background for these talks is not entirely conducive for Kosovo. The EU member states are getting anxious about ‘losing’ Serbia as a potential member state. From the EU perspective, the Kosovo issue is a hindrance in the process of dragging Serbia into the Western camp before it loses interest in joining altogether. Brussels has included normalization of relations with Kosovo among the accession requirements for Serbia. Hence, the EU feels impelled to ‘deliver’ Kosovo normalization as quickly as may be possible.

The Brussels dialogue has now, incredibly, been carried on for a full decade. Thus far it has yielded a significant number of agreements on practical improvements in relations between both states, such as transport and communication. Yet, few of the texts signed in Brussels have been transformed into reality.

Kosovo has been quite active and professional in recording this persistent failure of implementation and complaining about it to Brussels, but there has been no meaningful response. This has led to the impression that the EU negotiators are merely trying to tick boxes, claiming notional successes in adding agreement upon agreement, without actually advancing on any of the issues that matter to people in their real, daily lives.

Kosovo in its turn has been criticized for failing to implement one particular commitment it made early in the Brussels process, in the very first agreement on normalization of 2013. In the 2013 agreement, later restated, it promises to establish an Association of Serb Municipalities in Kosovo. This concession, which Kosovo had wisely avoided in the Ahtisaari status negotiations, raised the fear that a further layer of administration is to be added between the central authorities of Kosovo and the individual municipalities. This fear, compounded by a critical review of the undertaking to establish the Association of Serb Municipalities by the Kosovo Constitutional Court, led to paralysis on this issue on the part of Kosovo, and to corresponding criticism by Kosovo’s international partners.

Kosovo’s enthusiasm for the Brussels process has also diminished as the actual prospect of EU membership has rather moved beyond the horizon. While it seems likely that Serbia will still just manage to slip in, the expectation is that others will have to wait for a long time until they can join, if at all. France, one of the most powerful EU members, has given formal expression to this enlargement fatigue, indicating that it will not support an ever-expanding membership. Moreover, the EU has failed to stick to its own promises. For instance, when pressing Kosovo into accepting the border agreement with Montenegro, it promised visa-free travel in return. This commitment was never fulfilled.

3. Relations with Individual States

Moreover, five EU members (Cyprus, Greece, Romania, Slovakia and Spain) still refuse to recognize Kosovo as a state. This complicates the EU’s role as honest broker between Serbia and Kosovo. This is evident where symbolic questions, like the display of Kosovo’s flag at official meetings, are concerned. But this attitude also extends to other, more substantive issues, undermining the assumption that the negotiations are being conducted by the EU in relation to two equal parties.

Kosovo has lost further ground with the disappearance of Britain from within the EU. After some initial hesitation, the UK had turned into a solid supporter of Kosovo’s case. Moreover, Angela Merkel, the Chancellor of Germany, will leave the political stage in a few months. She had personally underwritten the pledge given to Kosovo that Serbia cannot be admitted to the EU until it regularizes its relations with Kosovo. Her successor, to be determined in hotly contested elections in Germany this autumn, may not feel so bound.

Then there is the position of the incoming Biden administration that is yet to be tested. President Trump had railroaded Belgrade and Prishtina into accepting a somewhat idiosyncratic deal on supposed economic normalization. This included the opening of transport links and some rather odd, additional elements. These include the screening for terrorists, branding Hezbollah a terrorist organization, an undertaking not to buy from ‘untrusted’ vendors of 5G communications equipment (China), relations with Israel, and the decriminalization of homosexuality.

According to the deal, Kosovo would also refrain from seeking new membership in international organizations for one year. In return, Serbia would agree a one-year ‘moratorium in its de-recognition campaign’ of Kosovo.

4. False Equivalence

This arrangement somewhat symbolizes Kosovo’s at times hapless handling of aspects of its international relations. It tends to accept an equivalence of its own behaviour with that of Serbia where there is no equivalence. Kosovo is fully entitled to seek membership in international organizations. This is entirely its sovereign prerogative and is, indeed, internationally encouraged as evidence of Kosovo’s willingness to contribute constructively to peaceful international relations.

On the other hand, Belgrade’s de-recognition campaign is a hostile act that interferes with the diplomatic relations of other states. By definition, it disrupts, rather than enhances, international relations. However, in agreeing to suspend this disruptive policy that challenges the international legal order, Serbia obtained a commitment of Kosovo to cease its own, entirely legitimate international activity. Kosovo meekly settled for this uneven deal and it will likely come under pressure to extend it beyond the first anniversary of the Washington agreement.

The Biden administration is likely to be less irrational and more even-handed than team Trump. Then, again, there is some history in Kosovo-US relations that may need resolving. After all, the former US government played a key role in displacing Prime Minister Albin Kurti from his office a year ago, after he had won his post fairly in democratic elections. Having returned to office now, wielding a fresh and enhanced democratic mandate, some further clearing of the air with Washington will be required, although the incoming Prime Minister has already made the right noises in this respect.

PM Kurti will want to invest some further energy in reassuring the US about his intentions. A close relation with Washington, based on US leadership in bringing about the NATO-led liberation of Kosovo, remains an essential plank of Kosovo’s foreign policy. Previously, that relationship rested in part on the unique bond between Prime Minister, and later President, Hashim Thaci, and elements of the US administration. This relationship virtually enabled the White House to give direction to Kosovo’s attitude on a range of critical issues.

While it would not be right to seek to restore a subservient relationship, the Biden administration should be persuaded that Kosovo’s more assertive defence of its own interests is legitimate. Kosovo does not in any way aim to undermine the close alliance with the US. When it comes down to it, Kosovo will always stand with the US. This requires the nurturing of contacts with the US at a number of different levels, in a private and in a confidential way, to build trust and confidence.

Even if the relations between Kosovo and the US return to an even keel, President Biden clearly prefers to work through international cooperation and alliances. In this instance, he has confirmed that the EU occupies the front seat in running the normalization dialogue. The US will be involved, but merely as a supporting partner. Kosovo will need to press for an active, supporting role by the US. Otherwise, the internal dynamics of EU interests and policy, which favour Serbia, will dominate.

5. Kosovo’s Overstretch

The debacle of Kurti’s removal from office last year also raises another point. It was, in part, connected with Kosovo’s imposition of economic sanctions against Serbia. Kosovo had argued that Serbia’s aggressive diplomacy directed against Kosovo damaged its interest to an extent that economic counter-measures were justified. These counter-measures consisted of high import duties for products from Serbia. Serbian export earnings dropped significantly. In consequence, the Belgrade government was confronted for the first time with pressure from inside Serbia to address the situation in Kosovo.

The result was, however, a typical one where Kosovo is concerned. Its own domestic audience applauded the more assertive stance of the government, then led by President Thaci and Prime Minister Ramush Haradinaj. Rather than directing international ire at Serbia, which had caused the crisis by attacking Kosovo’s international standing, strong pressure from the EU, the US and others was directed against Kosovo. In the end, the newly elected PM Albin Kurti was blamed for the policy instituted by his predecessors and, although he lifted the sanctions in stages, this fact played a role in his removal last year.

The lesson is, again, that Kosovo must learn to operate on an uneven diplomatic playing field. The imposition of tariffs may have been legitimate. However, Kosovo did not consider the international implications of such a policy. This included the question of whether it would be able to sustain its action in the face of the likely international pressure it would trigger. Having to reverse its policy, evidently due to foreign intervention in the matter, seriously weakened Kosovo’s standing. It appeared to show that Serbia is able to use its position in the international system far more effectively.

Belgrade managed to turn the focus away from its own illegitimate or controversial actions that had triggered Kosovo’s response. Instead, international focus and criticism was directed towards Kosovo’s reaction that was at least to some extent justified. Black became white and white became black. Moreover, the episode seemed to prove that Kosovo’s foreign policy is bounded by the direction of the US and the EU, undermining its claim of acting in a fully sovereign way. This episode offers some lessons for Kosovo in relation to its stance in the upcoming negotiations. It must avoid overreach and should not provoke confrontations which it is structurally bound to lose.

6. Belgrade’s Structural Advantage

All this said, what then is the balance of power between Serbia and Kosovo in the upcoming negotiations? First, Serbia can still profit from the structural inequality inherent in its claim, however unfounded in actual fact, that it is a fully sovereign state while Kosovo is not. Consciously or unconsciously, the EU interlocutors may well continue to acquiesce in Belgrade’s wrongful thesis that Kosovo’s status is not yet decided as this is the very issue to be addressed in the negotiations. Hence, their argument goes, this question must not be prejudiced by treating Kosovo as a state in the negotiating process.

This translates itself into a privileged position of Serbia in its involvement in the design of the negotiating process and of the agenda for the talks, and in the treatment of both delegations by the EU. The five states within the EU that have refused recognition to Kosovo will press the Brussels negotiators to persist in this unequal treatment.

In terms of the atmospherics of the talks, there will be considerable agitation among the negotiators, fearing that Kosovo’s new government will change the dynamics of the dialogue as it has taken place thus far. A firm insistence by Kosovo that it can legitimately defend its interests from a position of equality is likely to be regarded as obstruction, rather than the legitimate posture it actually is. This means that Kosovo will face increasing pressure to cave in to demands put by Serbia in order to allow progress in the talks. The argument will be that Kosovo should keep its eyes on the prize—recognition by Serbia and facilitation of Kosovo’s UN membership. In order to win this prize, the mediators and governments supporting them will argue, Kosovo should offer very substantive concession.

7. The Demand for Continued Parallel Structures

Where substance is concerned, Kosovo will come under great pressure to accommodate Serbian demands for increasing levels of territorial self-governance for areas mainly inhabited by ethnic Serbs. Many governments still think that Serbia somehow needs to be compensated for the ‘loss’ of Kosovo, and this would be one of the means of doing so. They fail to see that Belgrade is not really all that interested in the conditions of life of their ethnic brethren in Kosovo. The issue is not about people, but about control over territory.

For Serbia, self-governance for ethnic Serb communities does not really mean self-governance for ethnic Serbs in Kosovo. Rather, going by present practice, supposed self-governance translates itself into a parallel structure of governance in Kosovo that is funded, supported and controlled by Belgrade. This control would be exercised through an exaggerated version of the Association of Serb Municipalities, through the Serbian authorities dominating Northern Mitrovica, and through Belgrade’s influence over the Serb Orthodox Church and its properties. Hence, the aim is not to enhance the control of ethnic Serbs over their own lives as part of multi-ethnic Kosovo. Rather, it is to enhance and legitimize Belgrade’s control over significant areas of territory within Kosovo. This is evidenced by Serbia’s lack of interest in the advanced provisions offered by Prishtina for its ethnic Serb and other communities—provisions Kosovo might well enhance yet further if there is a demand for such action by its ethnic Serb and other constituents.

Kosovo’s argument that the balancing of interests between Kosovo and Serbia has already taken place by way of the Ahtisaari deal, fully implemented by Prishtina, will not be easily accepted by EU officials, however justified that argument may be. After all, they have spent years in preparing for negotiating ‘their settlement,’ which is meant to reflect some sort of grand bargain. If Serbia accepts Kosovo as a state, then Kosovo must offer significant compensation for this concession, their theory goes.

8. Pressure Points

If Kosovo appears unreasonable or obstructive in relation to these demands, the EU may threaten to give up on normalization and downgrade the requirement of a settlement between Kosovo and Serbia in the accession negotiations with Belgrade. In the past, this prospect has impelled Kosovo to concede much, without gaining a great deal in return.

Of course, the need to appease Serbia sufficiently to accept Kosovo’s statehood on the part of the EU is balanced by the requirement to gain Kosovo’s agreement to the further concessions that will be demanded in the negotiations. The election of a Prime Minister in Kosovo who is reputed to be more impervious to Western pressure in favour of painful compromizes complicates this task, as does the fact that few believe by now that EU membership is a realistic perspective for Kosovo anytime soon.

On the other hand, Kosovo remains structurally dependent on Western good-will. Its economy cannot yet sustain itself without significant EU subsidies. Its security cannot be fully assured without the military umbrella of NATO being extended over it in the shape of KFOR. Kosovo’s future might conceivably be placed in jeopardy if either of these benefits were to be withdrawn.

However, it is that very fact which makes the threat of such a drastic severance of relations less credible. Western Europe has no interest in a failed state of Kosovo at its centre.

There is also the lesson from Cyprus. Given heavy pressure from Greece, the EU admitted Cyprus before a UN-sponsored settlement of the dispute with the Turkish community on the Island was accepted by both sides. This removed any incentive for (Greek) Cyprus to come to a settlement, which has in consequence remained elusive to this day. This experience should suggest to the EU that it would be a mistake to accept Serbian membership before it has normalized relations with Kosovo. After all, one of the main requirements for membership is to have no outstanding boundary disputes with other states when entering the Union. To claim the entire territory of another state would clearly breach that requirement.

That said, the principal EU governments, the US and the UK, will put significant pressure on Kosovo to settle according to the design put forward by the EU interlocutors. And they do exercise some power and influence over Kosovo. This does limit Kosovo’s space to manoeuvre. Faced with these pressures, Kosovo will need to develop a subtle and innovative approach to the negotiations that finely balances an assertive, although not aggressive, approach with a well-reasoned and reasonable attitude. This requires an accelerate process of preparation and planning which will now need to be put in place.

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.