Monday, July 26, 2010

U.S. calls on all countries to recognize Kosovo

Office of the Spokesman
July 22, 2010


Release of International Court of Justice Advisory Opinion on Kosovo’s Declaration of Independence

The International Court of Justice today issued its advisory opinion and decisively agreed with the longstanding view of the United States that Kosovo’s declaration of independence is in accordance with international law. This is the view we set forth in the briefs we submitted to the Court and in the oral proceedings that it held last December. Kosovo is an independent state and its territory is inviolable.

We call on all states to move beyond the issue of Kosovo’s status and engage constructively in support of peace and stability in the Balkans, and we call on those states that have not yet done so to recognize Kosovo.

Serbia and Kosovo are both friends and partners of the United States. Now is the time for them to put aside their differences and move forward, working together constructively to resolve practical issues and improve the lives of the people of Kosovo, Serbia, and the region. This is the path toward their future, as part of a Europe, whole, free, and at peace, and we welcome the European Union’s efforts to assist both countries in realizing their European aspirations.

(Distributed by the Bureau of International Information Programs, U.S. Department of State. Web site:

Thursday, July 22, 2010

International Court of Justice (ICJ) has ruled Kosova’s Declaration of Independence did not violate international law

World court: Kosovo's independence was legal
Associated Press

Posted on July 22, 2010 at 9:04 AM

THE HAGUE, Netherlands (AP) — The United Nations' highest court says Kosovo's declaration of independence from Serbia did not break international law.

The nonbinding opinion sets the stage for a renewed push by Kosovo for further international recognition of its independence.

Reading the opinion Thursday, International Court of Justice President Hisashi Owada said international law contains no "prohibition on declarations of independence."

"International law does not have an active provision that limits independence declarations, therefore Kosovo's declaration of independence is not in breach of international law," the court president, Hisashi Owada of Japan, said.

The top UN court stated that it focused on the specific question received from the UN General Assembly, and did not discuss the right to self-determination or secession.

The judge also said that the UN Security Council Resolution 1244, which ended the war in Kosovo in 1999, and which Belgrade sees as a guarantee of the country's territorial integrity, contained no arguments to prevent the unilateral proclamation, as its purpose was to establish a temporary administration, without intent to decide on Kosovo's final status.

It was also announced that ten out of 14 judges voted in favor of the ruling.

The opinion is based on the UN General Assembly’s demand submitted on October 2008 after a resolution was adopted to forward the question to the ICJ, on Serbia's demand.

Officials from Belgrade and Priština were in attendance, along with ambassadors from all the countries that participated in the public debate of the issue.

While the advisory opinion is not binding for states, experts believe it would carry "great legal, political, and moral weight".

Kosovo sparked sharp debate worldwide when it seceded from Serbia in 2008, following a bloody 1998-99 war and nearly a decade of international administration.

Kosovo's statehood has been recognized by 69 countries, including the United States and most European Union nations. Serbia and Russia lead a handful of others in staunchly condemning it.

Monday, July 19, 2010

President Clinton among "A-list" honoring Sandy Levin

Governor Jennifer Granholm
Congressman John Dingell
Senator Debbie Stabenow
Senator Carl Levin

Announce the Summer Reception Honoring


With Special Guest


Sunday, July 25, 2010
2:00 p.m.

Town Center Atrium

2000 Town Center

[Ten Mile and Evergreen]

Southfield, Michigan

For more information, or to

RSVP please call

(586) 576-1636

Friday, July 16, 2010

Advisory opinion in the Kosova case set for 22 July

The ICJ has now officially announced that it will deliver its advisory opinion in the Kosova case on 22 July. This essay/post is intended to serve as a preview of the many issues raised in the case, of the main lines of argument by states before the Court, and of the several possible avenues that the Court might take in deciding the case. It is meant to be structured in such a way to help the reader to better understand where the Court is coming from once it hands down its much anticipated opinion, and I hope that it will prove helpful.

Author: Marko Milanovic

The Court will have to address in one way or another four broad groups of issues:

(1) Various preliminary objections (put forward e.g. by France and Albania) mainly as to the propriety of the exercise of its advisory jurisdiction, that seek to persuade the Court to decline to render an opinion. These objections are neither likely to succeed nor are themselves particularly interesting, and I will therefore not be discussing them in this post;

(2) The meaning of the question that the UN General Assembly has posed to the Court. As we will see, the scope of the question is an absolutely crucial issue, that will have ripple effects on all other issues in the case;

(3) The lawfulness, vel non, of the UDI under general international law;

(4) The lawfulness, vel non, of the UDI under UN Security Council Resolution 1244 (1999).

With the exception of (1), I will now address each of these broad areas in turn.

The Question Question

UNGA resolution A/RES/63/3 asked the following question of the Court: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” The Court obviously has to interpret this question before attempting to answer it, and much will depend on how it proceeds to do so.

Both Kosovo and its supporters (e.g. the US and UK) have criticized this question as being absurd or nonsensical, or at the very least so narrow that it renders the Court’s advisory function almost totally meaningless. In their view, the GA has asked the Court (in a formulation proposed by Serbia, which Serbia itself referred to as narrow) to proclaim on the legality of a verbal act adopted on a given day by (what in Serbia’s argument was, and remains) a non-state actor – the UDI of 17 February 2008. However, except in the most limited of circumstances (e.g. incitement to genocide), international law has absolutely nothing to say on the verbal acts of non-state actors, as it does not regulate them with regard to their content. Therefore, the question whether the UDI was ‘in accordance’ with international law either cannot be answered, or that answer is very simple indeed – there was no norm of international law prohibiting it, and hence it is in full accordance with international law.

For their part, Serbia and its supporters (e.g. Spain, Cyprus and Argentina) argue that the question is neither all that narrow nor absurd. Not only do some of the objections above presuppose the content of the norms in dispute, but the General Assembly cannot be thought to have asked the Court a question without any meaning or purpose. Rather, in Serbia’s view, the question is not confined to the legality of a purely verbal act by a non-state actor, but pertains to the lawfulness of a purported act of state creation, i.e. the secession of a part of Serbia’s sovereign territory. The question can be said to be narrow only to the extent that it excludes from its ambit the lawfulness, vel non, of the acts of third states, namely the recognition by some states of the alleged new state of Kosovo.

This account is of course a bit simplistic, but I hope that it adequately captures the arguments of the opposing sides. Bearing them in mind, the Court has three basic options as to how it will interpret the question:

(1) A narrow reading will mean that the Court will confine itself to examining the legality of a purely verbal act adopted by a non-state actor on a given day;

(2) A moderate reading will require the Court to examine the lawfulness of the secession as such;

(3) An expansive reading will have the Court venture not only into examining the lawfulness of the secession, but also into the further issue of what are the consequences of its finding of (il)legality. Most importantly, after examining the lawfulness of the secession, the Court could establish whether the entity of Kosovo fulfils the legal criteria for statehood, i.e. possesses a sufficient factual predicate for it in the absence of any legal impediments.

Subtle variations in these three readings are of course possible, as each is underpinned by its own policy considerations and by how the Court perceives its adjudicative role in the international community. One thing to watch for is whether the Court will resort to explicitly reformulating the question posed by the General Assembly, as it has done in several cases in the past. But again, I cannot emphasize this strongly enough, a great deal depends on which option the Court chooses. In the following analysis, I will proceed from the assumption that the Court will choose either a moderate or an expansive reading of the question.

The UDI and General International Law

If the UDI is seen as a purported act of secession and state creation, what does general international law have to say about it? In the submission of Kosovo and its supporters – nothing much. International law is essentially neutral towards secession, treating it as a fact that is neither legal nor illegal. In some cases, international law may explicitly prohibit secession, for example when it is a direct consequence of the use of inter-state force, as was the case with Northern Cyprus. In others, it may explicitly create a right of secession, as with external self-determination. In between these two extremes, however, international law remains in a posture of neutrality.

This in Serbia’s view incorrect. Far from being neutral towards secession, modern international law posits territorial integrity as one of its foundational principles. Unless it creates an explicit and exceptional right to secession, as with external self-determination, international law generally prohibits it in favour of the mother state’s integrity.

To this argument Kosovo responds by saying that Serbia and its supporters mischaracterize the legal nature of the principle of territorial integrity. It is indeed a foundational rule of modern international law, but it is one which applies only between states. In other words, it is other states which (up to a point) had a duty to respect Serbia’s territorial integrity, but that duty did not extend to individuals and non-state actors within Serbia itself. Such a duty may have been imposed, say, by Serbian domestic law, but individuals and non-state actors most certainly do not have it under general international law.

The written and oral arguments made by dozens of states before the Court are of course a bit more complex. They also involve much speaking past each other, a large degree of confusion, as well as conceptual and terminological inconsistencies. But ultimately, in my view, the general international law issue boils down to a choice between two competing models of secession: a two-part model advocated by Serbia and its supporters, where secession is prohibited unless expressly permitted; and a three-part model advocated by Kosovo and its supporters, in which there are narrow zones of both prohibition and explicit permission, and a wider zone of neutrality, in which secession is neither prohibited nor expressly permitted.

Now, crucially, this is again where the ‘question question’ comes into play. Kosovo and its supporters thus argue that it is only if Kosovo’s secession comes into in the ‘prohibited’ zone of either model that it would be necessary for the Court to venture into the issue of self-determination. This is so simply because the GA’s question does not ask the Court to rule whether Kosovo had a right to declare independence, but whether its UDI was in accordance with international law – a requirement that a mere absence of a prohibition would presumably satisfy.

It is because of this procedural posture and the formulation of the question that the issue of self-determination has played a distinctly subsidiary role in the proceedings (to the initial surprise of many, myself included). Kosovo did its best to persuade the Court that it simply doesn’t need to reach it – indeed, if one takes a look at Kosovo’s first written contribution, self-determination takes up only two (2!) out of hundreds of pages. On the other hand, many states have put a greater emphasis on the self-determination issue, and the Court may well have something to say about it. As the readers are aware, that issue raises several distinct sub-issues: are the Kosovo Albanians a ‘people’; does a non-colonial people gain the remedial right to external self-determination on account of state oppression and denial of human rights and/or internal self-determination; if so, has that right lapsed because of passage of time and Serbia’s offer of full internal autonomy.

The UDI and Resolution 1244

One strand of the case is thus the conformity of the UDI with general international law. The other is its validity under UNSC Resolution 1244 (1999).

The main issues basically revolve around the proper interpretation of Resolution 1244. The arguments are very sophisticated, and I am incapable of summarizing them in a truly coherent way (I would in that regard refer the readers to the oral arguments of Sean Murphy on behalf of Kosovo and Andreas Zimmermann on behalf of Serbia). Suffice it to say that the main thrust of Kosovo’s argument is again the absence of any prohibition. In their view, there is nothing in the resolution which prevented Kosovo from adopting a declaration of independence. In particular, the preambular reference to the FRY’s territorial integrity was nothing more than a statement on the Council’s part of the legal situation as it was when the resolution was passed – that Kosovo was then, in 1999, a part of the FRY. It was not, however, a guarantee that Kosovo will always remain a part of Serbia.

Serbia, on the other hand, argues that the resolution asked the parties to reach a settlement on Kosovo’s final status, and that the term ‘settlement’ by definition excludes solutions imposed unilaterally, such as the UDI. In fact, both the Security Council and the Special Representative of the Secretary-General (SRSG) have previously declared as invalid and contrary to Resolution 1244 acts adopted by the Kosovo Assembly which in one way or another tried to assert a claim of independence.

Kosovo responds by saying that today, unlike in previous cases, there was indeed a ‘settlement,’ which was not unilateral, as it followed a political process of negotiation, the appointment of Martti Ahtisaari as the UNSG’s special envoy, and his conclusion that the final status should be independence. Serbia rejoins, however, by saying that the Security Council never endorsed Ahtisaari’s plan and Kosovo’s independence.

These are the main arguments in a nutshell, but they are interwoven in a very complex web with several other more-or-less ancillary arguments, some of which I think are absolutely fascinating. They are moreover easy to miss if the case is looked at only casually. They include:

(a) The identity of the authors of the UDI: One issue, that at first glance might seem to be quite marginal or even peculiar, is how to characterize the authors of the UDI. In Serbia’s view, the authors of the UDI were undoubtedly the Provisional Institutions of Self-Government (PISG), namely the Kosovo Assembly, President and Government, that were set up by UNMIK under the auspices of Resolution 1244. Not only is this a fact that the Court can adduce from the available evidence, but in its question to the Court the General Assembly has actually made this factual determination, when it asked to Court to rule on whether ‘the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo [was] in accordance with international law.’

Kosovo responds by saying that the authors were not in fact the PISG, i.e. were not acting in that capacity, but were acting organically as the ‘democratically elected representatives of the people of Kosovo.’ The UDI was not adopted as an act of the Kosovo Assembly as part of the PISG, but was signed by the assembled dignitaries more or less in their personal capacity, as is shown, inter alia, by the original vellum manuscript of the UDI itself.

Thus, the parties in the case actually dispute the very identity of the authors of the UDI. At the oral hearings (e.g. at 28, 29, 30, etc.), in order to avoid any appearance of prejudice, President Owada thus repeatedly referred to the authors as the ‘authors of the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo.’ This semantically simply magnificent formulation drew a smile from at least one or two other members of the bench – but we’ll see in a minute why any of this actually matters.

(b) Legal nature of UNMIK regulations: One prong of Serbia’s argument is that the UDI not only violates Resolution 1244 as such, but also the whole legal regime established by it through regulations passed by the SRSG/UNMIK as the international civilian administrator. Among these regulations the most important is the Constitutional Framework for Kosovo, which sets out the competences of the PISG. In Serbia’s view, the UDI and subsequent developments were manifestly ultra vires acts under the Constitutional Framework.

Kosovo and its supporters respond by saying that even if the UDI was a violation of the Constitutional Framework, the GA’s question only asks the Court to assess the conformity of the UDI with international law, which the regulations are not, as they are or were the local, municipal law of Kosovo.

Not so, says Serbia. Not only were the regulations passed by UNMIK, a subsidiary organ of the UN established by a Security Council resolution, and were hence international by definition, but Kosovo’s argument presents a false choice to the Court. There is no reason why the Constitutional Framework and other regulations couldn’t at the same time be regarded as being both international and domestic in nature.

And this is where the identity of the authors of the UDI starts to come in – if they were not the PISG, and were acting in some sort of organic capacity as the democratic representatives of their people, a pouvoir constituant, then they could not have acted ultra vires the Constitutional Framework because it was not the Framework which gave them their vires to act. Serbia then says, oh come on, this is just a self-serving construction designed to avoid the binding effect of the Constitutional Framework. These were the same people who were elected as the PISG and they didn’t just go poof! one minute and transform from the PISG into some ill-defined group of individual representatives.

(c) Binding effect of UNSC resolutions on non-state actors: The case also raises a similar, but more fundamental issue – could the UDI, as an act of a non-state actor, even violate a UNSC resolution? Under Art. 25 of the Charter, it is UN member states who have a duty to comply with UNSC resolutions, but there is nothing in the Charter that says that individuals or non-state actors generally have such a duty. If, in other words, Resolution 1244 was not even binding on the authors, how could the UDI have violated it?

Now, this is an argument that was noticed by a very small number of states – and it is an issue very, very rarely addressed in the literature. Even those that have noticed the argument chose not to employ it in such a categorical way. Some have merely expressed doubts as to whether the UNSC can bind non-state actors; others have opted for an interpretative presumption, saying that even if the UNSC can bind non-state actors, it needs to do so explicitly, and there is no such language in the resolution.

Serbia has several responses to this line of argument. First, because the authors were the PISG (here again the identity issue comes into play), and the PISG were created by UNMIK, which was itself created by Resolution 1244, the PISG must themselves be bound by 1244, and indeed this is what the Constitutional Framework explicitly says. Likewise, the Council has in its presidential statements also explicitly referred to the need for the PISG and all other actors to comply with 1244, and has accordingly regarded the resolution as being binding on non-state actors. Finally, even if the authors were not the PISG, all actors in Kosovo were subject to 1244, as this is simply a consequence of the nature of international territorial administration.

(d) Acquiescence by the UNSC and the UNSG/SRSG: Acquiescence is a major argument deployed by Kosovo and its supporters in favour of their preferred interpretation of Resolution 1244 as requiring neither acceptance by Serbia nor explicit endorsement by the Security Council for a ‘settlement’ of Kosovo’s final status to be reached. This purported acquiescence takes two forms. First, the UNSG and the SRSG have acquiesced in the UDI by not annulling it, as they had the authority to do, an authority that the SRSG exercised on several previous occasions. Second, the UNSC has also acquiesced, as it has adopted no decision condemning the UDI, nor has it instructed the UNSG/SRSG to disregarded it. All this indicates that the primary actors tasked with interpreting and applying Resolution 1244, to whose judgment the Court should defer, did not consider it to preclude the UDI.

Serbia responds as follows: first, the UNSG and the SRSG have quite explicitly taken a position of ‘strict neutrality’ towards the UDI. A position of neutrality by definition cannot be taken as a tacit endorsement of the UDI’s legality. As for the UNSC, we know exactly why it has been unable to adopt any decision regarding the UDI – because a lack of political agreement among its permanent members. This is neither the first nor the last such time. Considering not only the text of the Charter which sets out the positive requirements for a Council decision, but also the context and the way in which the Council operates, it would be unacceptable as a matter of both law and policy to say that a mere failure to condemn equals acquiescence. Otherwise, the Council could, for example, be said to have acquiesced in any unauthorized use of force that it fails to condemn because of a potential P-5 veto (see, e.g., Iraq).

This, I think, covers most of the issues with regard to the UDI’s conformity with Resolution 1244. The ‘big’ question, if I may be excused for paraphrasing George W. Bush, is who is ultimately the decider. Does a ‘settlement’ have to be negotiated, i.e. can Serbia indefinitely prevent Kosovo’s independence simply by withholding its agreement? Or can Kosovo impose a solution on Serbia, so long as it has the support of a large section of the ‘international community’? Or is it rather the Security Council who has to conclusively say that a settlement has been reached, and what that solution has to be? The big question aside, we mustn’t underestimate the importance of the ancillary issues I have outlined above, and their interplay with the interpretation of Resolution 1244.

Conclusion: The Court’s Options

Having thus looked at the various issues and arguments, what are the options before the Court? I can see six, again bearing in mind that the Court can interpret the GA’s question narrowly, moderately, or expansively:

(i) Dismissal: The Court can refuse to answer the question and dismiss the case on various grounds of judicial propriety. This is unlikely, though not impossible.

(ii) Narrow reading: The Court can read the question very narrowly, in which case its answer will be very narrow as well, confined to the formal examination of the UDI as a purely verbal act adopted by a non-state actor on a given day. Whatever the Court’s decision, it will legally be neither here nor there with respect to the broader issues at play.

(iii) Moderate reading – Serbia wins: If the Court adopts a moderate reading of the question, and looks at the legality of the secession as such, it can then conclude that the secession was unlawful as a violation of general international law, Resolution 1244, or both. However, it might then rule that it is not for it to say what the consequences of such a finding of a violation would be. Specifically, it could leave open the question of Kosovo’s statehood for resolution (or not) within the UN political bodies or within the political process generally. This would allow Kosovo to argue that though its secession may have been unlawful (in the view of the Court), its statehood is a question of political fact and is untouched by the Court’s decision.

(iv) Moderate reading – Kosovo wins: Similarly, the Court might adopt a moderate reading of the question, find that there was no norm of international law prohibiting Kosovo’s secession and that the UDI was therefore ‘in accordance’ with international law, only to then abstain from ruling on Kosovo’s statehood. This would allow Serbia to argue that though Kosovo’s secession may not have been unlawful (in the view of the Court), Kosovo still does not fulfil the criteria for statehood, as e.g. its independence from Serbia is entirely dependent on the (status-neutral) international presence in Kosovo which still operates under the auspices of Resolution 1244.

(v) Expansive reading – Serbia wins: If the Court interprets the question expansively, and finds in Serbia’s favour, it could then proceed to examine the issue of Kosovo’s statehood and rule that the entity of Kosovo is not a state under international law.

(vi) Expansive reading – Kosovo wins: Alternatively, the Court could read the question expansively and rule in Kosovo’s favour, finding also that it does indeed fulfil the legal criteria for statehood. (It is also theoretically possible, but quite unlikely, that the Court will find that secession was unlawful, but that Kosovo is a state, or vice versa).

These are the results that I think are legally and logically open to the Court (of course, the Court may well disagree, and come up with something completely different). I would, however, dispute the conventional wisdom that the Court will render a Solomonic opinion that will be equally (un)satisfactory for both sides. The formulation of the question and the consequent array of arguments appear to exclude such an option. Except in scenarios (i) and perhaps (ii), there will be a clear winner and a loser, though in scenarios (iii) and (iv) the extent of that win or loss could be somewhat relativized (and these scenarios are for that reason perhaps more likely). Finally, whatever the majority decides, it is certainly possible for there to be a serious split within the Court, which would probably be bad news for everyone, above all for the Court itself. That said, again, the inevitable political spin on the Court’s decision and its broader ramifications are not something that I wish to comment on.

Wednesday, July 14, 2010

Settling the Balkans

PILPG Advisory Board Member Morton Abramowitz and PILPG Managing Director James Hooper’s commentary regardingthe Balkans appeared in the National Interest. The article provides an insightful look at the upcoming advisory opinion of the International Court of Justice regarding the legality of Kosovo’s independence in 2008, which is expected to be announced later this summer. Ambassador Abramowitz, a senior fellow at the Century Foundation, served as Assistant Secretary of State for Intelligence and Research from 1985–1989. James Hooper is a managing director of the Public International Law & Policy Group.

The full article is included below and is also available at:

Settling the Balkans
by Morton Abramowitz and James Hooper

The curtain is about to rise on the next act of Balkan diplomacy: the fallout from the advisory opinion of the International Court of Justice (ICJ) on the legality of Kosovo’s independence in 2008, expected to be announced later this summer. The resort to the ICJ was a shrewd diplomatic stroke by Belgrade, buying over two years for Serbia to slow international momentum toward recognition of Kosovo and put the country’s UN candidacy into deep freeze.

No one knows what the court will do, but:

­If the opinion favors Kosovo, that will bring the new state more recognitions to the significant but still underwhelming sixty-nine they have received to date. But they will not win recognition from Serbia nor admission to the UN because of a Russian veto. Nor will Serbia give up its demand for the northern part of Kosovo inhabited mostly by Serbs. Kosovo will have an improved limbo status.

­If the opinion is against Kosovo, the fledgling state will keep its independence but lose some recognitions and the hope of getting into the UN or EU. It will be left in a more dangerous limbo and some serious popular violence against Serbs in Kosovo is quite possible.

­If, as many expect, the court, understandingly fearful of the consequences of its decision, comes down on neither side, many states that have sat on the sidelines of the recognition debate will be more open to recognition, which Serbia well understands. Facing declining international leverage from their resolute opposition, Belgrade will likely seek to open negotiations with Pristina over their future relations. Kosovo, like it or not, will have to engage because its Western patrons will insist. This scenario has both risk and promise and serious ramifications not only for Kosovo and Serbia but also for neighboring Macedonia and Bosnia.

A Serbian Initiative to Square the Circle

Anticipating less than resounding support from the court, Serbia has begun laying the groundwork for a new diplomatic initiative. While they may initially attempt another round of “internationalizing” the problem at the UN, senior Belgrade officials have been whispering to Western officials and visitors that they want a deal on Kosovo. This in itself is a novelty, after years of cloaking their Kosovo demands in inflexible, emotional language.

The West is paying attention. But it is unclear to Western diplomats whether Belgrade is willing to compromise on terms that will make a stabilizing outcome possible. Serbian intermediaries insist on three things: a territorial adjustment returning the Serb inhabited districts of north Kosovo to Serbia, special treatment for several Orthodox monasteries in Kosovo, and an implicit understanding that the West will not let the Kosovars demand too much in return. Some officials indicate Serbia would be prepared to drop the campaign against further international recognitions of Kosovo independence and perhaps allow Kosovo into the UN but not recognize Kosovo. How firm a position this is remains to be tested. Serbian motivation is clear: to settle on borders that enable them to advance their EU accession agenda and keep the European assistance spigot flowing, while protecting their domestic political flanks

Some in Europe assert that it would be irresponsible to pass up an opportunity to explore Serbia’s flexibility on a new relationship with Kosovo. An indefinite frozen conflict in the Balkans needs to be avoided; the recent flare-up of violence in north Mitrovica shows the instability of the current standoff in the north. European officials would prefer to avoid settling for an indefinite frozen conflict; the thrust of their diplomacy, politics and economic policies for the past several decades has been to overcome national and ethnic divides and they believe they have learned important lessons in the process that translate into successful diplomatic tactics.

Washington is not uninterested but also fears danger and destabilization not simply opportunity. Talk of the North’s partition raises the specter that angry Kosovars would retaliate against Serbs living in other areas of Kosovo and could well stoke Macedonia’s restive Albanian community to break with Skopje and join with Albania and Kosovo to form a united Albanian state.

If a deal might be possible, it would make sense to work out the details and lock in an agreement. It is also sensible to recognize that a frozen conflict is better than risking renewed violence and the disintegration of Macedonia by rushing into negotiations on optimistic assumptions that might not bear fruit. The allies need to work out their differences and reach an understanding about what would constitute a stabilizing outcome before encouraging substantive negotiations between the two parties.

The Regional Dimension

Their first step should be to examine the regional situation and the impact of negotiations starting with Pristina.

Kosovo is lively and entrepreneurial but politically it is a mess. It aspires to be an independent Western oriented state, but its government is riddled with corruption and has largely squandered its moral standing among its own people and in the West. Continuing foreign rule has mostly failed to develop the institutions of a modern democratic state and set low standards in preventing corruption. Kosovo needs to be rid of the dependent mentality fostered by more than a decade of Western domination but still have access to Western aid and advice in many sectors. Kosovo’s leaders, however much at odds on domestic spoils, can unite on dealing with Serbia. They are not enthusiastic about negotiations but want any negotiations to leave Kosovo an independent state with its Serb-populated northern region part of Kosovo. They fear the West in its eagerness for a settlement will accept protracted negotiations that would ultimately lead to weakened support for Kosovar objectives. They also fear popular wrath from any “compromise” on the current de facto partition of the Serbian dominated north.

Serbia seeks admission to the EU, but European leaders have conveyed mixed messages­at times some seem to say that Serbia could achieve admission without resolution of the Kosovo problem. The Tadic government has basically continued the rejectionist stance on Kosovo of the previous Kostunica regime but in a skillful and nuanced fashion, which has won it friends abroad. Serbia has worked hard to maintain control over northern Kosovo, centered on the divided city of Mitrovica, which the West has done nothing to prevent since the 1999 war. While many Serbs are tired of the Kosovo problem and want the government to focus on issues central to their lives, the Serbian political class still is politically reluctant to risk changing their approach to Kosovo. Senior Serbian officials professedly recognize that Kosovo is lost to them but assert they cannot leave Kosovo “empty handed.” For similar political concerns Tadic needs to conclude any negotiated outcome well before Serbia’s April, 2012 elections.

Neighboring Macedonia is a parlous state and potentially the most directly affected by Kosovo negotiations. It remains divided between poor Albanians and slightly better off Slavs despite the painfully cobbled together Ohrid agreement to bridge the gulf between them and produce a politically viable state. Its hope to better preserve internal stability through admission to NATO has been held up by Greece’s refusal to allow the country to use its legitimate name. The Macedonian Albanians stay in close touch with their brethren in Albania and Kosovo and Albanian unification is on many minds. It has long been axiomatic among Balkans hands that any partition of Kosovo would lead to the breakaway of Albanian dominated western Macedonia.

The West and the Management of Any Negotiations
The EU and U.S. remain deeply involved in the area but with diminishing troops, money and governance. Their approach over the past two decades has been belated and invariably pragmatic­one problem at a time. Dayton ended a war but did it on a permanent ethnic divide which has prevented political progress and the leader of its Serb entity openly promoting independence. NATO liberated Kosovo from Milosevic, but in establishing an independent entity left the territorial boundaries of the state uncertain in deference to Serbia. They furiously sought to keep Macedonia together through the Ohrid agreement but became distracted subsequently without doing enough to help make the state work better.

The EU has replaced the U.S. as the major arbiter in the area with money, troops and the hope of EU accession as the principal tool for bringing the countries along. Many fear the EU is not up to the task of resolving the Kosovo issue if only because of its divisions on Kosovo. The EU formula for progress in the area is still to be tested while hopes of accession have actually receded. Only in Kosovo has the U.S. remained the dominant player, often to EU chagrin, because the people of Kosovo consider the U.S. as their only reliable friend.

Right now Western countries are emphasizing negotiations, but meaning “technical talks” on passport, customs, and other issues between Serbia and Kosovo. These are important practical matters affecting the livelihood of their citizens, but do not deal with the broader issues between the countries and certainly not the ones that most concern the Serbian and Kosovo governments. Most recently the issue of Kosovo’s partition has caught public attention throughout the Balkans

One problem that Western negotiators face is that partition of Kosovo in exchange for potential UN membership for a rump Kosovo state is not a marketable proposition in Pristina. Nor can Serbia expect the West this time to pressure the weaker party­Kosovo­to accept terms that fall short of its minimal requirements. The challenge will be to determine whether there is sufficient flexibility in the Serbian position to make negotiations worth pursuing and enough for Serbia in the deal to shield the government from predictably violent criticism by opposition hardliners.

This is not to suggest that both parties have nothing to gain from an agreement. The Tadic government believes that it has little to fear from negotiations that could facilitate Kosovo’s partition, ease its entry into the EU, and rid the international community of a burden in northern Kosovo. Nor do talks present the Kosovars with solely lose-lose options. Most Kosovars prefer that their borders remain as they are, even if they don’t control them, to avoid dealing with the implications of changing them. But many would not likely mind shedding the 40,000 Serbs living north of the Ibar River, and welcome the opportunity to recover some of the ethnic Albanians living in Serbia’s Presevo Valley along Kosovo’s eastern border, that is a territorial swap. If done voluntarily and packaged as part of a normalization process with Serbia, many Kosovars might well see such a swap, whatever Western concerns of its ethnic nature, as a strengthening of their independent state rather than a betrayal by the West, but it would be controversial. All the main Kosovo Albanian political parties are on record opposing a swap. The West would also fear that Serbs in the “enclaves” further south would also flee to Serbia. Despite the controversy, a territorial swap may be the only circumstance in which loss of the north might be palatable to Pristina and thus provide the foundation for an agreement. It has often been suggested over the years since 1999, and just as often rejected by Belgrade, although there have been from time to time a few hints that it might now be conceivable. Belgrade apparently still believes that it can recover the North without any territorial swap.

Western governments will have to ask themselves what can be realistically achieved in any negotiations. After all, the promise of EU accession seems increasingly far off, and the U.S. has a pretty full plate. Political miscalculations are more the rule than the exception in the Balkans, and there is considerable risk that even sober-minded and experienced diplomats could launch a process that blows up in their faces. Even with two unfinished wars and troubles with Iran requiring continuing high-level attention, these are portentous matters for Washington to consider.

We believe that the essential prerequisite for a Serbia-Kosovo negotiating process that does not lead to regional instability is an understanding between the U.S. and the allies on a deal that fits within the following parameters:
Acceptance of the Helsinki principle that border changes between states cannot be imposed but are acceptable if mutually agreed. This would preempt any temptation to impose partition on Kosovo just to pacify Belgrade but leave the door open for a territorial swap should both parties conclude it meets their needs and helps stabilize relations.

Agreement by Serbia to allow Kosovo into the United Nation and willingness by Kosovo to accommodate Serbian insistence that it not be required to establish diplomatic relations with Kosovo presently as a reality of Serbian politics.

Commitment by NATO to bring Kosovo into the alliance after any negotiated settlement with Serbia. This would help authorities there resist irredentist tendencies.
Reinforcement of Macedonia’s security as an insurance policy against unexpected blowback from talks. This means a total Western effort to broker a settlement of the name issue with Greece and moving Macedonia quickly into NATO.

A unified, clear warning to Republik Srpska Prime Minister Milorad Dodik that secession from Bosnia is totally unacceptable, lest he escalate his efforts to weaken and undermine the Bosnian government into a full-fledged initiative to separate from the country and join Serbia.

Maintenance of Western military forces at some level in Kosovo until there is a better resolution of relations between Serbia and Kosovo.

An end date for Western political control of Kosovo. Whether talks produce anything or not, 2012 should be the end of the agreement for EULEX. Provision should be made for extensive technical and economic assistance to the Kosovo government.
If informal exploratory talks at an appropriate time with the Serbs and Kosovars reveal that a deal is not likely achievable, the West should halt the process before launching formal negotiations that raise expectations and do potential damage to regional stability.

If the Serbs indicate that they are not in fact interested in a deal the West should do what it has never been prepared to do: take control of the Serbian-ruled northern region of Kosovo. Belgrade should understand that failure to reach a deal means that they will lose whatever chance they may have in negotiations to recover the north, with the West then integrating northern Kosovo slowly but firmly into Pristina’s governing authority despite likely violent Serb resistance. Indeed we believe such a move should take place before negotiations begin­by arresting leaders of the Serb politico-criminal gangs that control the north­to make clear the West’s concern for partition, but we recognize it is highly unlikely that the US and its allies are either inclined or able to agree to make such a move now or later. That is unfortunate.

We are not unalloyed admirers of current Western policy toward the Balkans and do not take anything for granted about what the West does there. An unsettled Kosovo can create problems for the whole area. Resolution may not be at hand and the issue may remain a frozen conflict. Indeed there might not be any substantive negotiations. But a resolution would help strengthen all four troubled states of the former Yugoslavia and the ICJ opinion may offer such an opportunity. The West should also use any initiative on the Kosovo issue to make Bosnia a more effective state and to help enhance Albanian integration in Macedonia and persist in trying to resolve that country’s name issue.

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