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Legal and Political Contradictions in Kosovo: Limits of the Brussels Agreement

Legal and Political Contradictions in Kosovo: Limits of the Brussels Agreement The present tensions in Belgrade-Pristina relations highlight the relevance of consensus regarding the question of Kosovo. This article argues that unilateral decisions produce anti-debates by introducing the thesis that Kosovo is a unique case and impose various legal dilemmas that engender discrepancies between legal documents and practice. Drawing from the indispu- table achievements of the EU, the article argues that there is a ‘‘silent’’ consensus among the actors (Kosovo, Kosovo Serbs, and Serbia) on the status of Kosovo as a European protectorate. Keywords The EU, Serbia, Kosovo, consensus, consociationalism that Kosovo has acquired independence and now has the Introduction task of building stable and sustainable institutions. Thus, Since Yugoslavia’s dissolution, Kosovo has been exam- these recommendations for institutional design, however ined in not only in conflict studies, international relations, innovative, are doomed to fail without (at least) the tacit and international law, but also in the fields of political the- consent of Serbia’s government and the participation of ory, ethics, and philosophy. The complexity of the case Kosovo Serbs. As Mehmeti (2017), pp. 216–242), an has invited scholars to abandon their comfort zones and advocate of this approach, notes, if we are to acknowl- ‘‘imagine themselves as moral agents in a mission civilisa- edge ‘‘dual sovereignty in action,’’ there are two possible trice.’’ Indeed, ‘‘Kosovo has come to be a debate about solutions. While the first solution implies forced, arbi- ourselves, about what we hold as normal and what excep- trary and unilateral decisions which historically have tional’’ (Koskenniemi, 2008, p. 162). This blend of aca- only postponed the challenges, the second solution demic fields has produced superb readings and provoked requires the involvement of both to ensure a sustainable many innovative and courageous approaches. However, and long-lasting settlement. although the conflict in Kosovo has had extensive cover- The unilateral declaration of independence (UDI) did age in academic circles and media, few scholarly publica- not solve either problem but, rather, unpacked the second tions analyze Kosovo’s two-layer problem: (a)What is the layer without consensus on status, thereby excluding those status of Kosovo? and (b) Which institutions are most who do not accept Kosovo as a sovereign state from the appropriate for this multicultural society with an agreed debate on institutional design. This exclusion is not acci- status? While some authors focus on solving the status dental; it represents the systematic obstruction of aca- question (Bieber, 2019; Dodds et al., 2014; Semenov, 2017; demic debates on Kosovo by introducing the ‘‘Kosovo as Yannis, 2009; for accurate predictions prior to 2008, see: a unique case’’ (KUC) thesis, and each debate has its anti- Tziampiris, 2005, 2006), most of the Kosovo-related aca- demic literature is devoted to the analysis of the present provisional political arrangement and institutional design University of Prishtina, Kosovska Mitrovica, Serbia (Baracani, 2020; Doli & Korenica, 2011; Fort, 2018; Corresponding Author: Visoka, 2017, 2018). Both groups have their assumptions. Andrej Semenov, University of Prishtina, Filipa Visnjica, Kosovska Mitrovica The latter group of scholars offers institutional design 38220, Serbia. options, but these are usually based on the assumption Email: andrej.semenov@fsv.cuni.cz Creative Commons CC BY: This article is distributed under the terms of the Creative Commons Attribution 4.0 License (https://creativecommons.org/licenses/by/4.0/) which permits any use, reproduction and distribution of the work without further permission provided the original work is attributed as specified on the SAGE and Open Access pages (https://us.sagepub.com/en-us/nam/open-access-at-sage). 2 SAGE Open debate. As such, the paper provides a brief historical low politics, technical agreements, and the ambiguous review of the uses and misuses of the KUC thesis. nature of the language can have a spillover effect on high- Following the distinction of debates and anti-debates, it level politics and solve urgent issues. describes paradoxes caused by this approach. The paper posits that Kosovo’s institutions were designed consistent Historical Context with consociational democracy, and it considers institu- tions and practices against this model. Notably, the pro- Several explanations exist for the Yugoslav conflicts. ponents of this approach assume Kosovo’s statehood as a Some of the main reasons posited are ancient hatreds, matter of fact and concentrate on state-building and the the influence of the political and intellectual elite, and process of reconciliation rather than status. For them, the external influences. Yet, the aim of this section is not to international missions are in Kosovo to help the region give a comprehensive record of the region’s history nor reach the capacity to govern its territory. Hence, once it to analyze explanations. Instead, its goal is to examine acquires this capacity, it will acquire the legal and legiti- the political idea that ‘‘the Serbs are aggressors – the mate power to govern, and citizens will have a fully recog- Albanians are victims.’’ Kosovo’s tumultuous history nized state that will foster patriotism and participation, must be discussed as the further the Albanians and the the narrative of which will be written alongside the build- Serbsgobackintime, thesimpler it is forthemtoargue ing of the state. This approach solves one side of the prob- ‘‘whatever they want in order to find support for their lem, without addressing Serbia and the Serbian minority view of the present’’ (Judah, 2008, p. 30). Nonetheless, in Kosovo. Ignoring this aspect may be a solution in the three periods shaped Kosovo’s demographic picture: the short run; however, without consensus among Kosovo ‘‘Great Migration,’’ World War II, and the period between Albanians, Kosovo Serbs, and Serbia, the Kosovo ques- the 1974 Constitution and the 1989 Constitution. tion remains—the Serbs are unlikely to abandon the In 1688, the Serbs, encouraged by the Habsburg dream of regaining Kosovo. Any plausible solution Empire, rose against the Ottoman Empire; however, the regarding Kosovo’s status must involve Kosovo Austrians were defeated in the Kacanik Gorge, resulting Albanians, Kosovo Serbs, and Serbia. in brutal Ottoman vengeance. Tens of thousands of The former group rightly acknowledges that the status Serbs and Albanian Catholics were forced to immigrate question is a condicio sine qua non for Kosovo’s eco- which led to Kosovo becoming depopulated. nomic and political development. However, the given Simultaneously, the Ottomans encouraged ‘‘resettlement proposals are often impractical and influenced by cur- here with loyal Albanian Muslims, many of whom were rent regimes’ agendas. The first category of proposals now to come down from the mountains of Albania’’ comprises unrealistic solutions, such as the partition of (Judah, 2008, p. 33; cf. Malcolm, 1999, pp. 139–160). Kosovo and Kosovo as a part of Serbia. The second However, the question of Kosovo escalated in 1878, category holds that only when Kosovo is ready for full the year Serbia officially gained independence from the membership in the EU will its status be of principal OttomanEmpire. In the sameyear, theLeagueofPrizren importance; therefore, the dialog over statehood should was founded to create an autonomous all-Albanian be postponed, and the focus should be on economic administration within the Empire (Kola, 2003). Two dif- issues in the region that can be solved by technical agree- ferent ideologies and nationalism were about to clash— ments. The second variation of the approach is the con- Kosovo was at stake. On the one hand, while the Great cern of this paper. Considering the poor economic Powers granted Albanian independence, many Albanians conditions in the region, this solution sounds logical and were left outside the newly formed states. On the other plausible. However, this reasoning fails to recognize that hand, the Serbs had won three wars (the first and second only an agreed status can engender the stability neces- Balkan wars and World War I) in the early 20th century, sary for economic development; Kosovo’s unstable envi- earning strong credibility in the eyes of their allies, and ronment does not invite investment. Foreign aid will not Serbia had doubled its territory, which included Kosovo be available in the long term, and Kosovo must produce (Malcolm, 1999, p. 257). Although Albanian frustration and create goods. The proponents of this approach was growing, no major changes occurred until World believe that a spillover effect from European integration War II. During World War II, the situation dramatically could ease the relationship between the Albanians and the changed, when Germany and its allies occupied Serbia; Serbs. The paper submits that the EU uses neo-functional the Albanians controlled the Serbian population in peace to facilitate political disputes between Belgrade and Kosovo. Though they committed monstrous crimes, the Pristina and considers the highest achievement of this new communist elite and Josip Broz did not prosecute the process—the Brussels Agreement (cf. Baracani, 2020; Albanians in exchange for political support (Avramov, Bergmann & Niemann, 2018; Visoka & Doyle, 2016). In 2008; Kola, 2003, p. 83). This cooperation was partially light of recent events in Kosovo, the paper asks whether rewarded with an autonomous status. However, Kosovo Semenov 3 remained within the sovereignty of the Socialist Republic human rights violations are vital considering Milosˇ evic´ ’s of Serbia, contrary to Albanian aims (Malcolm, 1999, p. politics, their interpretations are often not fair. The 316). The 1963 Constitution upgraded the region to the Constitution was revised with the full participation of the status of a province, but once again, Kosovo’s autonomy federal bodies, and the amendments were approved by the Kosovo Assembly (International Court of Justice, 2009). was guaranteed by Serbia (SFRY Constitution, 1963, art. Furthermore, as Jovanovic´ (2011, pp. 356–357) indicates, 111–112). Nonetheless, this Constitution was significant Serbia never entirely abolished the autonomy of Kosovo because Amendment VIII guaranteed constitutional Albanians: the 1989 constitutional amendments changed equality among nations and encouraged the Albanians to seek additional rights (e.g., the University of Pristina ‘‘unprecedented competences of an autonomous regime offered classes in Albanian), which led to the creation of within a larger political unit,’’ while according to the 1990 the Albanian elite. With the creation of the new Kosovo Constitution, Kosovo preserved territorial autonomy and control over aspects vital for minorities such education, Albanian elite, the University of Pristina, ‘‘once flagged as social protection, language, etc. a showcase of inter-ethnic coexistence,’’ developed into a On the other hand, it is true that Milosˇ evic´ ’s regime ‘‘fortress of nationalism’’ (Kostovicˇ ova, 2005, p. 44). The violated the fundamental human rights of Kosovo pinnacle of this nationalistic enthusiasm was the Albanian Albanians. However, it should be emphasized that demonstration in 1981, which ‘‘shattered any semblance instances of severe police misconduct were not exclu- of brotherhood and unity at the university and in the sively directed toward the Albanian minority, since province as a whole’’ (Kostovicˇ ova, 2005, p. 45). ‘‘Positive police brutality was documented throughout the entire discrimination in favour of the Albanians in Kosovo’’ in state (UN Economic and Social Council, 1998). reality meant ‘‘the virtual Albanisation of public life in It is also important to mention, in 1992, failed to seize Kosovo’’ (Vickers, 1998, p. 180). the opportunity to topple Milosevic: After Broz’s death, ethnic tensions escalated further; in 1981, at a mass demonstration, the Albanians shouted, the million Albanian votes could undoubtedly have ousted ‘‘We want a unified Albania,’’ which may imply that Milosevic, but as the Kosovar leadership admitted at the Kosovo Albanians already saw Kosovo as an indepen- time, they did not want him to go. Unless Serbia continued to dent entity. The 1980s saw a new exodus of the Serbian be labelled as profoundly evil – and they themselves, by virtue population: ‘‘Serbs felt they were harassed to leave their of being anti-Serb, as the good guys – they were unlikely to farms and houses,’’ often agreeing to sell their properties achieve their goals. It would have been a disaster for them if for above-market prices. (Judah, 2008, pp. 59–60). One a peacemonger like Panic had restored human rights, since can reasonably argue that ‘‘Albanian repression in the this would have left them with nothing but a bare political 1970s and the beginning of the 1980s becomes the cause agenda to change borders (Vickers, 1998, p. 263). which triggers the effect – the response of the Serbian ´ This act of collective refusal to vote can be interpreted as state’’ (Jovanovic, 2011, p. 359). a misuse of constitutional rights—‘‘nullus commodum The above-mentioned developments created favorable conditions for Slobodan Milosˇ evic´ , who was perceived capere de sua iniuria– no one may derive an advantage as a messiah among Kosovo Serbs. In 1987, he consoled from their own unlawful acts’’ (Jovanovic´ , 2011, p. 15). Kosovo Serbs when the masses yelled, ‘‘they beat us’’ To summarize, demographic changes in Kosovo (they being the police, mostly comprised of Albanians). occurred in two periods of foreign occupation and dur- Milosˇ evic´ replied with words that still echo in the ears of ing the last two decades of the communist regime. During these periods, the ethnic ratio changed to the the Serbs: ‘‘no one shall beat you.’’ These words meant advantage of the Albanians. Furthermore, the separatist that Kosovo Serbs would be no longer face discrimina- ambitions of Kosovo Albanians, which have been con- tion on their land. Interestingly enough, members of the stant since 1878, continued when Kosovo was granted EU parliament portrayed Kosovo Serbs as victims at unprecedented autonomy in 1974. Finally, the violation that time. However, once Milosˇ evic´ came to power, the of human rights occurred; however, it was not exclu- EU adopted an entirely different narrative, stating that sively related to Kosovo. In view of these three facts, the Belgrade is a threat to Kosovo Albanians’ human rights next section explains the insurmountable political obsta- (Radeljic, 2017, pp. 64–65). cles that confront the major debates on Kosovo. In 1989, on the 600th anniversary of the Kosovo Battle, he returned to Kosovo to deliver his most infa- mous speech. Despite the widely accepted opinion that The Anti-Debates the speech preached ethnic hate, Milosˇ evic´ called for the prosperity of each of Serbia’s citizens ‘‘irrespective of his The question of Kosovo has produced three critical anti- national or religious affiliation’’ (Milosˇ evic´ , 1989). debates. Before the internationalization of the case (1999), Although the 1991 changes to the Constitution and brutal Kosovo was mainly studied in Yugoslavia’s specialist 4 SAGE Open circles (e.g., Cohen, 1993; Woodward, 1995). However, Yet, by calling a case unique we suggest that the les- with the end of the wars in Croatia and Bosnia, the focus sons learned from it cannot be applied elsewhere. This shifted to Kosovo, which produced the first examinations chain of reasoning leads to contradictions, which are of the socio-historical ties in the region and between the explored in the following section. two ethnic groups (Malcolm, 1999; Vickers, 1998). The first debate aims to scrutinize the history of the region. Contradictions Despite attempts to distort it, history frames Kosovo as the land of the Serbs, and the demographic changes This section elucidates contradictions that emerged as occurred due to foreign occupations. Then, politics inter- the direct consequence of the anti-debates. However, it vened, claiming that history should not play a role (unlike neither produces an exhaustive list of contradictions nor in other cases) since Kosovo is unique, representing the last analyses weaknesses of the Constitution in-depth but piece of Yugoslavia (Ahtisaari, 2008; UDI, 2008, par. 10). highlights the major discrepancies between reality and The second debate surrounds the legality and legitimacy of practice. Hence, issues, such as the role of the president, NATO’s campaign against the sovereign state outside the the lack of ‘‘ownership’’ of the Constitution, the decision UN, based on the mass human rights violations (e.g., not to grant veto power to minorities, the Constitution’s Cassese, 1999; Simma, 1999). The denial of this dispute is creation ‘‘for the people, from the people’’ but with no best summarized by the Council on Foreign Relations option for change by the people, and others, are omitted. (2007): ‘‘Kosovo is a unique situation because NATO was The section focuses on dilemmas caused by the triangle forced to intervene to stop and then reverse ethnic cleans- of the Rule of Law Mission in Kosovo (EULEX), the ing. Those conditions do not pertain to any of the con- Comprehensive Proposal for the Kosovo Status flicts that are usually brought up in this context.’’ This Settlement (Ahtisaari Plan), and the UNMIK. view not only disregards the violation of fundamental In March 1999, following several months of peace human rights present in the whole state and enduring negotiations between the Serbian government and the Albanian separatism but also introduces the dangerous Kosovar separatist Kosovo Liberation Army, NATO assumption of ‘‘ethnic cleansing.’’ Finally, the third debate launched a unilateral campaign against Serbia. Just stems from the need for a sustainable international mis- 78 days later, on 9 June, Serbia and NATO signed a sion to manage the power vacuum and regulate the ethnic cease-fire agreement in Kumanovo (North Macedonia). conflict. The denial of the third debate has two practical The next day, the UN Security Council approved goals: to acknowledge a ‘‘new reality’’ in which Serbia Resolution 1244. While the resolution safeguards exercises no governing authority (Ahtisaari, 2008, par. 7), Serbia’s sovereignty and integrity over its entire territory, and to confirm the KUC thesis, which asserts ‘‘Kosovo is Kosovo included, it also designates Kosovo as under a sui generis case,’’ based on the unprecedented involve- UN administration with the final political settlement still ment of the UN (Hilpold, 2009, p. 293). pending (UN SC Resolution, 1244, art. 11). This enabled While the shortcomings of the KUC thesis are the UN administration to do several reforms such as explained elsewhere, each anti-debate (or KUC argu- shifting capabilities to the provisional self-government ment) must be understood in its historical context. The (UN SC, 2001), and developing the ‘‘standards before first anti-debate disregards the historical ties in the status’’ policy (UN SC, 2003). Thus, Kosovo emerged region and that the Serbs lost their demographic super- from the conflict in its current form, with the law of bel- iority during two foreign occupations in which the ligerent occupation governing international missions. Albanians collaborated with occupants. Furthermore, it Since Kosovo’s current state emerged from an armed omits that Albanian separatism grew even when they had conflict between the two sides, it is the law of belligerent full control over the region; paradoxically, Albanians occupation that governs the international missions. The were better represented in Yugoslavia than in today’s Fourth Geneva Convention, among other documents of Kosovo. The second anti-debate discounts the legality international law of belligerent occupation, says that and legitimacy concerns of NATO’s intervention, although the intervention was deemed illegal but morally Protected persons who are in occupied territory shall not be necessary. However, this anti-debate assumes ‘‘ethnic deprived, in any case or in any manner whatsoever, of the cleansing’’ occurred, which abolishes any discourse on benefits of the present Convention by any change intro- whether the mass violation of human rights was exclu- duced, as the result of the occupation of a territory, into the sively against the Albanian minority or all political oppo- institutions or government of the said territory, nor by any nents of the regime. The third anti-debate excludes agreement concluded between the authorities of the occupied Serbia from any involvement in the process of institu- territories and the Occupying Power, nor by any annexation tional design and eliminates the possibility that the by the latter of the whole or part of the occupied territory model of Kosovo could be exported elsewhere. (Geneva Convention, 1949, art. 47). Semenov 5 One can easily conclude that the interim administration During that period, the Contact Group were holding had no right to make permanent changes in fundamental regular meetings with Martti Ahtisaari, an experienced institutions. However, Riegner (2010, p. 1056) notes that diplomat and expert for the Balkans, who was afterward while the international presence may look like an occupa- appointed by Ban Ki-moon, then the UN Secretary- tion, the international presence is founded on a multilat- General, to launch and oversee the direct negotiations eral document—Resolution 1244. The resolution calls for between Belgrade and Pristina. Since the two sides failed substantial autonomy and meaningful self-administration to make any progress under Ahtisaari’s supervision, he for Kosovo and respects the sovereignty and territorial presented the final plan envisaging ‘‘provisional indepen- integrity of Serbia. Therefore, the UN administration dence’’ (UN SC, 2007). The UK, the USA, and France had the right to pass the Constitutional Framework for backed the plan, while Russia declared it would use a Provisional Self-Government; however, the right to alie- veto to block Kosovo’s independence. In the aftermath, nate the land was not included. Any future settlement of Germany suggested further negotiations which would the status of Kosovo is under the authority of Serbia, as involve the USA, Russian, and EU. This last stage was Resolution 1244 confirms that ‘‘after the withdrawal an nothing but a political theater: agreed number of Yugoslav and Serb military and police [B]oth Russia and the US have in effect supported the max- personnel will be permitted to return to Kosovo’’ (UN imalist demands of their chosen proxies in the Balkans: SC, 1999, art. 4). Serbia and Kosovo. This neutered the most recent negotia- However, UNMIK and KFOR were ‘‘successful in tions of the US-EU-Russia troika, which were a last-ditch protecting Serbs as much as the Serbian police were in attempt to hammer out a compromise between Belgrade protecting Albanians’’ (Semenov, 2017, p. 96), during the and Pristina [.] Neither side had any incentive to compro- first year of the initiative, 230,000 Serbs and Roma fled mise, and the EU was exposed again as incapable of manag- (Burema, 2012, p. 7). In March 2004, there was a second ing a political crisis in its own backyard, while its taxpayers exodus of non-Albanian people caused by ‘‘sensational will be compelled to clear up the resulting mess (Glenny, and ultimately inaccurate reports’’ that some Serbs had 2007). drowned three Albanian children (Human Rights Watch, 2004). Kai Eide, the Special Envoy of the United The result was Kosovo’s UDI on 17th February 2009, Nations Secretary-General in Kosovo, said that the which produced several issues. The EU was effectively UN’s ‘‘leverage in Kosovo is diminishing’’ and the EU forced ‘‘into an onerous challenge – to maintain a status should assume the dominant role as it could ‘‘offer pros- neutral mission in Kosovo whilst its members were pects in the framework of the European integration pro- everything but neutral to Kosovo’s status’’ (Semenov, cess’’ (UN SC, 2005). In the wake of Eide’s report, the 2017, p. 97). Once the UN decided that Resolution 1244 UN Security Council (2005) began ‘‘a political process to should remain, the EU neither wanted to send a mission determine Kosovo’s Future Status.’’ However, the USA outside of the UN framework nor refrain from deploying and Russia did not want to hand over the status talks to it. As a compromise, the EULEX undertakes mandates the EU. The Contact Group, which includes the USA, of the ESDP Rule of Law Mission as envisaged by the Russia, as well as the UK, France, Germany, and Italy, Ahtisaari Plan but maintains the status-neutral frame- determined that the province’s future status ‘‘should con- work under Resolution 1244. Since then, Kosovo oper- form with democratic values and European standards’’ ates under supervised independence, overseen by the and eradicated any option of unilateral use of force or International Civilian Representative (ICR), while the reverting to the pre-1999 state (Guiding Principle of the EU Special Representative in Kosovo (EUSR) is Contact Group, 2005, par.2, 6). The Contact Group in required to take a status-neutral position. Notably, that period was having regular meetings with Martti Pieter Feith was EUSR and ICR for 3 years. The EU Ahtisaari, an experienced diplomat and Balkan expert, solved this issue in May 2011; however, it is uncertain who was subsequently appointed by Ban Ki-moon, the how EULEX representatives operated within the legal then UN Secretary-General, to begin and supervise system of Kosovo that was not recognized under direct talks between Belgrade and Pristina. Since the two Resolution 1244. sides failed to make any progress under Ahtisaari’s This contradiction cannot compare those produced to supervision, he presented the final plan envisaging ‘‘pro- the Kosovo triangle (EULEX, UNMIK, and the visional independence’’ (UN SC, 2007). The UK, the Ahtisaari Plan). The Constitution states that it ‘‘is the USA, and France supported the proposal, while Russia highest legal act of the Republic of Kosovo’’ (2008, art. declared their plan to use a veto to block Kosovo’s inde- 16) while simultaneously the Ahtisaari Plan ‘‘takes prece- pendence. In the aftermath, Germany proposed new dence over all other legal provisions in Kosovo’’ (art. negotiations involving the USA, Russia, and the EU. 143, par.2). It is not unprecedented that international This final stage was essentially just political theater: agreements serve as a foundational principle for 6 SAGE Open constitutions. However, due to Russia’s disapproval, the envisaged 20 of 120 seats for minority representation Ahtisaari Plan was never adopted by the UN Security (art. 64). Kosovo’s constitution further promotes cul- Council. In other words, the plan is not an international tural segmentation by stating that Kosovo is a multi- agreement proper. Therefore, ‘‘the Ahtisaari Plan does ethnic society whose official languages are Albanian and not legally validate Kosovo’s Constitution – the reverse Serbian (art. 2 & 5). Furthermore, articles 59 grants occurs. Although the Ahtisaari Plan authorises the adop- members of minority communities to preserve ‘‘the tion of Kosovo’s Constitution, it had no legal power to essential elements of the minority’s identity, such as reli- do so’’ (Morina et al., 2011, p. 57). This is already an odd gion, language, traditions, and culture.’’ Finally, while situation, nevertheless, the EULEX mission deepens legal the constitution does not envisage veto power on any confusion. The Ahtisaari Plan envisages an international decision (like in Bosnia, for example), it requires a dou- mission to ‘‘assist Kosovo authorities in their progress’’ ble majority for constitutional amendments (art. 145).. If (Ahtisaari, 2008, art. 12), while the UDI similarly invites the minority veto is understood as a suspense veto, the ‘‘an international civilian presence to supervise our imple- Constitution meets this requirement as well. These argu- mentation of the Ahtisaari Plan, and a European Union- ments have convinced certain scholars that Kosovo suc- led rule of law mission’’ (UDI, art. 20). However, since cessfully employs all four principles of consociational the UN reaffirmed Resolution 1244, the UNMIK mis- democracy (Doli & Korenica, 2010). sion remains in force (Muharremi, 2010, p. 368). This Consociational democracy is not a ‘‘particular institu- legal contradiction is best summarized by Semenov tional arrangement as [much as] the deliberate joint (2020), 382): As UNMIK is not covered by Kosovo’s effort by the elites to stabilise the system’’ (Lijphart, consent to exercise its power under Resolution 1244, the 1969, p. 213). Instead, it is a ‘‘general type of democracy conclusion is that EULEX had no legal basis to exercise defined in terms of four broad principles’’ (Lijphart, its mandate under Kosovo’s Constitution [.] EULEX is 1982, 2008, p. 67). Put simply, it is underpinned by four established by the Ahtisaari Plan (which is not only lega- requirements that provide guidance for both informal lized by Kosovo’s Declaration of Independence but also and formal agreements. Consociational democracy is as takes precedence over the Constitution) but operates much about the procedure as the result itself. Evidently, under the umbrella of UNMIK which exists in the this institutional arrangement does not meet the precon- Constitution only as a historical fact. Put bluntly, ditions of consociational democracy because it is not an Kosovo’s constitutional framework legalizes Ahtisaari agreement between the two sides. Considering the envi- Plan—Ahtisaari Plan legalizes the EULEX mission, ronment in which the Constitution was adopted and that while EULEX is illegal under Kosovo’s Constitution. the international community never conferred a feeling of ‘‘ownership’’ to Kosovo Albanian elites, it is clear that the Constitution is an arrangement that excluded elites Consociational Democracy on both sides (Marko, 2008). The arrangement fails to provide ‘‘universal participation,’’ as the Constitution is The aim of this section is twofold. First, it submits that not a result of an agreement between Albanian and Kosovo’s institutional design is based on consociational Serbian elites; thus, none of the elites possesses a feeling democracy. Second, this section examines the institu- of ownership over the Constitution. tional arrangement in practice to demonstrate how uni- The situation is more complex in practice. Lijphart lateral agreements that omit Kosovo Serbs and (1969, p. 216) identifies four requirements for a consocia- Belgrade from discussions lead to short-term, unten- tional democracy: able solutions. Consociationalism is a dominant model of conflict (1) That the elites have the ability to accommodate the management in ethnically divided societies that has been divergent interests and demands of the subcultures. (2) This championed by Arend Lijphard. He emphasizes two requires that they have the ability to transcend cleavages forms of power-sharing: grand coalition governments and to join in a common effort with the elites of rival sub- and proportional representation; two additional features cultures. (3) This in turn depends on their commitment to are segmental autonomy and the minority veto. the maintenance of the system and to the improvement of its From the legal perspective, Kosovo’s institutional cohesion and stability. (4) Finally, all of the above require- arrangement satisfies all four requirements of consocia- ments are based on the assumption that the elites under- tional democracy. First of all, Kosovo’s Constitution stand the perils of political fragmentation. guarantees a Minister and Deputy Minister roles in the Initially, two of these requirements were not satisfied. In Government (INQAAHE, 2008, art. 96). Therefore, the grand coalition requirement is satisfied. Therefore, the the grand coalition government, one place is guaranteed grand coalition argument is satisfied. In the framework for a representative of Kosovo Serbs; however, this of proportional representation, the Constitution requirement was unlikely to produce a proper Semenov 7 representative, since the candidate does not necessarily for Serbia to survive, insisting, however, that Kosovo is have to be from a Serb minority party. Participation pre- part of Serbia. This position has become a cornerstone sents an even bigger challenge. Although the of Serbia’s politics and a point leveraged by nationalist Constitution guarantees 10 seats to Kosovo Serbs in the media (see Jovanovic´ , 2018, 2021). assembly, the boycott prior to the Brussels Agreement The second assertion of this approach is moderate reconfirms that unilaterally given rights remain defunct and modest in its scope: only when Kosovo is ready for in practice without elite agreements. However, after the full membership in the EU will its status be of principal Brussels Agreement (2013), Belgrade pushed Kosovo importance. Thus, the dialog over statehood should be Serbs into Kosovo’s institutions and effectively orga- postponed, and economic issues in the region that can be nized their elections within the Kosovo constitutional solved by technical agreements should be the focus framework. Similarly, the Brussels Agreement (2013, art. (Economides & Ker-Lindsay, 2015). In this vein, through 6) envisages a ‘‘community of Serbian communities,’’ the Brussels Agreement, the EU has successfully decon- which guarantees segmental autonomy to the Serbian structed a sensitive political question into technical dis- minority. Therefore, the Brussels Agreement is an putes (Visoka & Doyle, 2016). The Brussels Agreement arrangement of two groups of elites to further legitimize produced an unequivocally good result—the two sides the Constitution of Kosovo. Nevertheless, though the sat together to discuss questions of vital importance for Agreement improves ordinary people’s lives, it is not a ordinary people in Kosovo, producing valuable compro- panacea for Kosovo’s challenges. mises such as integrated boundary management, recogni- tion of documents, and Serbia’s promise not to obstruct Kosovo’s path to the EU. However, by putting aside Consensus highly contested political issues, the Agreement unmasked urgent problems without solving them. While We have seen the consequences of solutions based on Kosovo Albanians call it the Agreement, Serbs refer to it unilateral or partially forced decisions. This section anal- as the Brussels Conclusion. Since Serbia’s parliament yses the other side of the coin—the approach that never ratified the Agreement, there is a possibility that a acknowledges status as an all-consuming dispute and future regime will argue that it is not binding for Serbia. recognizes the solution must include consensus. Similarly, the Supreme Court of Serbia ruled the agree- This approach assumes that Serbia’s politics regarding ment on Civil Registry and Cadastral Record to be ‘‘Kosovo and Europe’’ is not maintainable and that, at unconstitutional. Apart from this issue, there is another some point, the EU will force Serbia to decide, a decision question looming in the background: there is ‘‘a fine dif- that will be fueled by economic considerations. This view ference between Serbia’s rights and the rights of Kosovo paints a picture of Serbia’s politics as inconsistent and Serbs in Kosovo. From Serbia’s perspective, the Brussels chaotic: ‘‘Quite the contrary – Serbia drew the red line in Agreements only secure the rights of Serbs in the prov- the early days after democratic changes and that strategy ince’’ (Semenov, 2020, p. 384). has become the cornerstone of Serbia’s politics regarding The Brussels Agreement exposed a number of things, Kosovo’’ (Semenov, 2017, p. 89). The red line was drawn even though its primary aim was not successful—it failed by Zoran indic´ and popularized by Vojislav Kosˇ tunica. to improve the lives of the two communities in Kosovo. indic´ (2001) claimed that the final solution for Kosovo First, Belgrade and Pristina are prepared to negotiate should be neither making Kosovo a Serbian province, as and even compromise on certain issues. Second, it was before 1999, nor gaining its independence. Kosovo’s political status remains a precondition for the Kosˇ tunica (2011) further expanded on this idea, coining normalization of life in the area. Lastly, and most impor- the phrase ‘‘more than autonomy – less than indepen- tantly, it affirms the EU’s leverage to assist in developing dence.’’ During the Kosˇ tunica-Tadic´ coalition, there a final solution. Both communities demonstrated that were certain discrepancies such as Serb participation in they understand that pursuing the EU’s path is in their interim Kosovo institutions, however, the red line interest and showed that they were ready to compromise remained—‘‘Serbia could not accept the independence of on their demands and agree to European supervision. Kosovo and that only substantial autonomy of Kosovo within Serbia would provide stability and peace’’ For Pristina, it means no longer insisting on Kosovo (Spasojevic, 2017, p. 114). Subsequently, Ivica Dacˇ ic´ and being a sovereign state, while, for Belgrade, it means ced- ´ ing jurisdiction to the EU authorities. This chain of rea- Boris Tadic engaged in the politics of fear, refusing to soning indicates that both elites implicitly agree that sign agreements with the other side even while trying to Kosovo functions as an EU protectorate and any status appeal to the international community. In contrast, agreed upon by the main actors is a more sustainable Vucˇ ic´ (2019), Serbia’s current strongman, admits that solution than any unilateral decision. negotiations with Kosovo Albanians are the only way 8 SAGE Open Conclusions Notes 1. In this approach, a group of authors contributes to the In considering Kosovo’s two-layer problem—(a)What is North Kosovo discourse without discussing the political the status of Kosovo? and (b)Which institutions are most status of Kosovo (Troncota˘ , 2018; Vulovic´ , 2020; Zupancˇ icˇ , appropriate for this multicultural society with an agreed 2019). status?—as well as the historical context, academic dis- 2. This solution belongs to the category of exclusive nation- putes, and offered solutions, the following conclusions building in which the process occurs only among a few peo- can be made: ple or one ethnic group. 3. Except in German-controlled North Kosovo. 4. For the legal counterarguments, see Jovanovic´ (2011). For First, the history of Kosovo demonstrates that events the political science perspective, see Berg (2009) and in the 1990s can be understood in favor of both Economides (2013). Kosovo Albanians and Kosovo Serbs. Delving deeper 5. As a senior official from Brussels noted, ‘‘they are clearly back in time, it becomes easier to blur the line between trying to undermine the EU – of that there is no doubt’’ myth and reality. (Glenny, 2007). Similarly, Alberto Navarro, then the Second, the introduction of the thesis of Kosovo as a Spanish Minister for Europe, expressed his frustration that sui generis case has produced various legal and practi- ‘‘the future of Kosovo has been decided in Washington and cal impediments. This thesis also has excluded all to some extent in Moscow, and not in Europe’’ (BBC, scholars who disagreed with it from participating in 2008). the institutional design of Kosovo. 6. So far, 23 member states of the EU have recognized Third, the consociational model of democracy was the Kosovo; five members vigorously refuse to do so. 7. It can be understood as an absolute, applied to all decisions, standard for the authors of Kosovo’s Constitution. and as a suspensive, applied to certain specified decisions However, while the procedures of this arrangement do (Lijphart, 2008). not meet the requirement of consocialism, the Brussels 8. Lijphart uses the term ‘‘universal participation’’; the precon- Agreement is a true ‘‘deal of cartels’’ that further legit- dition is best understood by Dahrendorf’s (1967, p. 276) imizes the Constitution of Kosovo. term ‘‘cartel of elites.’’ Fourth, the EU’s efforts to normalize relations between Belgrade and Pristina through deconstructing References political disputes into technical agreements confirm that the implementation of the Brussels Agreement is Ahtisaari, M. (2008). The Comprehensive Proposal for the almost impossible. Nonetheless, the Brussels Kosovo Status Settlement. S/2008/168. Agreement and EULEX demonstrate the strong lever- Avramov, S. (2008). Genocid u Jugoslaviji 1941-1945, 1991. Akademija za Diplomatiju i Bezbednost. age of the EU, as well as that any plausible solution Baracani, E. (2020). Evaluating EU actorness as a state-builder regarding Kosovo’s status must involve Kosovo in ‘Contested’ Kosovo. Geopolitics, 25(2), 362–386. https:// Albanians, Kosovo Serbs, and Serbia. doi.org/10.1080/14650045.2018.1563890 Fifth, the Brussels Agreement and EULEX demonstrate BBC. (2008). EU splits on Kosovo recognition. the silent consensus regarding the status of Kosovo as a Berg, E. (2009). Re-examining sovereignty claims in changing European protectorate. It is formulated in Kosovo’s pre- territorialities: Reflections from ‘Kosovo Syndrome’. Geopo- mise—‘‘we obey European authority as long as we are litics, 14(2), 219–234. https://doi.org/10.1080/14650040 independent of Serbia’’—and in Serbia’s—‘‘we obey European authority as long as we do not need to recog- Bergmann, J., & Niemann, A. (2018). 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Legal and Political Contradictions in Kosovo: Limits of the Brussels Agreement

SAGE Open , Volume 12 (4): 1 – Dec 1, 2022

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© The Author(s) 2022
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2158-2440
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2158-2440
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10.1177/21582440221143307
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Abstract

The present tensions in Belgrade-Pristina relations highlight the relevance of consensus regarding the question of Kosovo. This article argues that unilateral decisions produce anti-debates by introducing the thesis that Kosovo is a unique case and impose various legal dilemmas that engender discrepancies between legal documents and practice. Drawing from the indispu- table achievements of the EU, the article argues that there is a ‘‘silent’’ consensus among the actors (Kosovo, Kosovo Serbs, and Serbia) on the status of Kosovo as a European protectorate. Keywords The EU, Serbia, Kosovo, consensus, consociationalism that Kosovo has acquired independence and now has the Introduction task of building stable and sustainable institutions. Thus, Since Yugoslavia’s dissolution, Kosovo has been exam- these recommendations for institutional design, however ined in not only in conflict studies, international relations, innovative, are doomed to fail without (at least) the tacit and international law, but also in the fields of political the- consent of Serbia’s government and the participation of ory, ethics, and philosophy. The complexity of the case Kosovo Serbs. As Mehmeti (2017), pp. 216–242), an has invited scholars to abandon their comfort zones and advocate of this approach, notes, if we are to acknowl- ‘‘imagine themselves as moral agents in a mission civilisa- edge ‘‘dual sovereignty in action,’’ there are two possible trice.’’ Indeed, ‘‘Kosovo has come to be a debate about solutions. While the first solution implies forced, arbi- ourselves, about what we hold as normal and what excep- trary and unilateral decisions which historically have tional’’ (Koskenniemi, 2008, p. 162). This blend of aca- only postponed the challenges, the second solution demic fields has produced superb readings and provoked requires the involvement of both to ensure a sustainable many innovative and courageous approaches. However, and long-lasting settlement. although the conflict in Kosovo has had extensive cover- The unilateral declaration of independence (UDI) did age in academic circles and media, few scholarly publica- not solve either problem but, rather, unpacked the second tions analyze Kosovo’s two-layer problem: (a)What is the layer without consensus on status, thereby excluding those status of Kosovo? and (b) Which institutions are most who do not accept Kosovo as a sovereign state from the appropriate for this multicultural society with an agreed debate on institutional design. This exclusion is not acci- status? While some authors focus on solving the status dental; it represents the systematic obstruction of aca- question (Bieber, 2019; Dodds et al., 2014; Semenov, 2017; demic debates on Kosovo by introducing the ‘‘Kosovo as Yannis, 2009; for accurate predictions prior to 2008, see: a unique case’’ (KUC) thesis, and each debate has its anti- Tziampiris, 2005, 2006), most of the Kosovo-related aca- demic literature is devoted to the analysis of the present provisional political arrangement and institutional design University of Prishtina, Kosovska Mitrovica, Serbia (Baracani, 2020; Doli & Korenica, 2011; Fort, 2018; Corresponding Author: Visoka, 2017, 2018). Both groups have their assumptions. Andrej Semenov, University of Prishtina, Filipa Visnjica, Kosovska Mitrovica The latter group of scholars offers institutional design 38220, Serbia. options, but these are usually based on the assumption Email: andrej.semenov@fsv.cuni.cz Creative Commons CC BY: This article is distributed under the terms of the Creative Commons Attribution 4.0 License (https://creativecommons.org/licenses/by/4.0/) which permits any use, reproduction and distribution of the work without further permission provided the original work is attributed as specified on the SAGE and Open Access pages (https://us.sagepub.com/en-us/nam/open-access-at-sage). 2 SAGE Open debate. As such, the paper provides a brief historical low politics, technical agreements, and the ambiguous review of the uses and misuses of the KUC thesis. nature of the language can have a spillover effect on high- Following the distinction of debates and anti-debates, it level politics and solve urgent issues. describes paradoxes caused by this approach. The paper posits that Kosovo’s institutions were designed consistent Historical Context with consociational democracy, and it considers institu- tions and practices against this model. Notably, the pro- Several explanations exist for the Yugoslav conflicts. ponents of this approach assume Kosovo’s statehood as a Some of the main reasons posited are ancient hatreds, matter of fact and concentrate on state-building and the the influence of the political and intellectual elite, and process of reconciliation rather than status. For them, the external influences. Yet, the aim of this section is not to international missions are in Kosovo to help the region give a comprehensive record of the region’s history nor reach the capacity to govern its territory. Hence, once it to analyze explanations. Instead, its goal is to examine acquires this capacity, it will acquire the legal and legiti- the political idea that ‘‘the Serbs are aggressors – the mate power to govern, and citizens will have a fully recog- Albanians are victims.’’ Kosovo’s tumultuous history nized state that will foster patriotism and participation, must be discussed as the further the Albanians and the the narrative of which will be written alongside the build- Serbsgobackintime, thesimpler it is forthemtoargue ing of the state. This approach solves one side of the prob- ‘‘whatever they want in order to find support for their lem, without addressing Serbia and the Serbian minority view of the present’’ (Judah, 2008, p. 30). Nonetheless, in Kosovo. Ignoring this aspect may be a solution in the three periods shaped Kosovo’s demographic picture: the short run; however, without consensus among Kosovo ‘‘Great Migration,’’ World War II, and the period between Albanians, Kosovo Serbs, and Serbia, the Kosovo ques- the 1974 Constitution and the 1989 Constitution. tion remains—the Serbs are unlikely to abandon the In 1688, the Serbs, encouraged by the Habsburg dream of regaining Kosovo. Any plausible solution Empire, rose against the Ottoman Empire; however, the regarding Kosovo’s status must involve Kosovo Austrians were defeated in the Kacanik Gorge, resulting Albanians, Kosovo Serbs, and Serbia. in brutal Ottoman vengeance. Tens of thousands of The former group rightly acknowledges that the status Serbs and Albanian Catholics were forced to immigrate question is a condicio sine qua non for Kosovo’s eco- which led to Kosovo becoming depopulated. nomic and political development. However, the given Simultaneously, the Ottomans encouraged ‘‘resettlement proposals are often impractical and influenced by cur- here with loyal Albanian Muslims, many of whom were rent regimes’ agendas. The first category of proposals now to come down from the mountains of Albania’’ comprises unrealistic solutions, such as the partition of (Judah, 2008, p. 33; cf. Malcolm, 1999, pp. 139–160). Kosovo and Kosovo as a part of Serbia. The second However, the question of Kosovo escalated in 1878, category holds that only when Kosovo is ready for full the year Serbia officially gained independence from the membership in the EU will its status be of principal OttomanEmpire. In the sameyear, theLeagueofPrizren importance; therefore, the dialog over statehood should was founded to create an autonomous all-Albanian be postponed, and the focus should be on economic administration within the Empire (Kola, 2003). Two dif- issues in the region that can be solved by technical agree- ferent ideologies and nationalism were about to clash— ments. The second variation of the approach is the con- Kosovo was at stake. On the one hand, while the Great cern of this paper. Considering the poor economic Powers granted Albanian independence, many Albanians conditions in the region, this solution sounds logical and were left outside the newly formed states. On the other plausible. However, this reasoning fails to recognize that hand, the Serbs had won three wars (the first and second only an agreed status can engender the stability neces- Balkan wars and World War I) in the early 20th century, sary for economic development; Kosovo’s unstable envi- earning strong credibility in the eyes of their allies, and ronment does not invite investment. Foreign aid will not Serbia had doubled its territory, which included Kosovo be available in the long term, and Kosovo must produce (Malcolm, 1999, p. 257). Although Albanian frustration and create goods. The proponents of this approach was growing, no major changes occurred until World believe that a spillover effect from European integration War II. During World War II, the situation dramatically could ease the relationship between the Albanians and the changed, when Germany and its allies occupied Serbia; Serbs. The paper submits that the EU uses neo-functional the Albanians controlled the Serbian population in peace to facilitate political disputes between Belgrade and Kosovo. Though they committed monstrous crimes, the Pristina and considers the highest achievement of this new communist elite and Josip Broz did not prosecute the process—the Brussels Agreement (cf. Baracani, 2020; Albanians in exchange for political support (Avramov, Bergmann & Niemann, 2018; Visoka & Doyle, 2016). In 2008; Kola, 2003, p. 83). This cooperation was partially light of recent events in Kosovo, the paper asks whether rewarded with an autonomous status. However, Kosovo Semenov 3 remained within the sovereignty of the Socialist Republic human rights violations are vital considering Milosˇ evic´ ’s of Serbia, contrary to Albanian aims (Malcolm, 1999, p. politics, their interpretations are often not fair. The 316). The 1963 Constitution upgraded the region to the Constitution was revised with the full participation of the status of a province, but once again, Kosovo’s autonomy federal bodies, and the amendments were approved by the Kosovo Assembly (International Court of Justice, 2009). was guaranteed by Serbia (SFRY Constitution, 1963, art. Furthermore, as Jovanovic´ (2011, pp. 356–357) indicates, 111–112). Nonetheless, this Constitution was significant Serbia never entirely abolished the autonomy of Kosovo because Amendment VIII guaranteed constitutional Albanians: the 1989 constitutional amendments changed equality among nations and encouraged the Albanians to seek additional rights (e.g., the University of Pristina ‘‘unprecedented competences of an autonomous regime offered classes in Albanian), which led to the creation of within a larger political unit,’’ while according to the 1990 the Albanian elite. With the creation of the new Kosovo Constitution, Kosovo preserved territorial autonomy and control over aspects vital for minorities such education, Albanian elite, the University of Pristina, ‘‘once flagged as social protection, language, etc. a showcase of inter-ethnic coexistence,’’ developed into a On the other hand, it is true that Milosˇ evic´ ’s regime ‘‘fortress of nationalism’’ (Kostovicˇ ova, 2005, p. 44). The violated the fundamental human rights of Kosovo pinnacle of this nationalistic enthusiasm was the Albanian Albanians. However, it should be emphasized that demonstration in 1981, which ‘‘shattered any semblance instances of severe police misconduct were not exclu- of brotherhood and unity at the university and in the sively directed toward the Albanian minority, since province as a whole’’ (Kostovicˇ ova, 2005, p. 45). ‘‘Positive police brutality was documented throughout the entire discrimination in favour of the Albanians in Kosovo’’ in state (UN Economic and Social Council, 1998). reality meant ‘‘the virtual Albanisation of public life in It is also important to mention, in 1992, failed to seize Kosovo’’ (Vickers, 1998, p. 180). the opportunity to topple Milosevic: After Broz’s death, ethnic tensions escalated further; in 1981, at a mass demonstration, the Albanians shouted, the million Albanian votes could undoubtedly have ousted ‘‘We want a unified Albania,’’ which may imply that Milosevic, but as the Kosovar leadership admitted at the Kosovo Albanians already saw Kosovo as an indepen- time, they did not want him to go. Unless Serbia continued to dent entity. The 1980s saw a new exodus of the Serbian be labelled as profoundly evil – and they themselves, by virtue population: ‘‘Serbs felt they were harassed to leave their of being anti-Serb, as the good guys – they were unlikely to farms and houses,’’ often agreeing to sell their properties achieve their goals. It would have been a disaster for them if for above-market prices. (Judah, 2008, pp. 59–60). One a peacemonger like Panic had restored human rights, since can reasonably argue that ‘‘Albanian repression in the this would have left them with nothing but a bare political 1970s and the beginning of the 1980s becomes the cause agenda to change borders (Vickers, 1998, p. 263). which triggers the effect – the response of the Serbian ´ This act of collective refusal to vote can be interpreted as state’’ (Jovanovic, 2011, p. 359). a misuse of constitutional rights—‘‘nullus commodum The above-mentioned developments created favorable conditions for Slobodan Milosˇ evic´ , who was perceived capere de sua iniuria– no one may derive an advantage as a messiah among Kosovo Serbs. In 1987, he consoled from their own unlawful acts’’ (Jovanovic´ , 2011, p. 15). Kosovo Serbs when the masses yelled, ‘‘they beat us’’ To summarize, demographic changes in Kosovo (they being the police, mostly comprised of Albanians). occurred in two periods of foreign occupation and dur- Milosˇ evic´ replied with words that still echo in the ears of ing the last two decades of the communist regime. During these periods, the ethnic ratio changed to the the Serbs: ‘‘no one shall beat you.’’ These words meant advantage of the Albanians. Furthermore, the separatist that Kosovo Serbs would be no longer face discrimina- ambitions of Kosovo Albanians, which have been con- tion on their land. Interestingly enough, members of the stant since 1878, continued when Kosovo was granted EU parliament portrayed Kosovo Serbs as victims at unprecedented autonomy in 1974. Finally, the violation that time. However, once Milosˇ evic´ came to power, the of human rights occurred; however, it was not exclu- EU adopted an entirely different narrative, stating that sively related to Kosovo. In view of these three facts, the Belgrade is a threat to Kosovo Albanians’ human rights next section explains the insurmountable political obsta- (Radeljic, 2017, pp. 64–65). cles that confront the major debates on Kosovo. In 1989, on the 600th anniversary of the Kosovo Battle, he returned to Kosovo to deliver his most infa- mous speech. Despite the widely accepted opinion that The Anti-Debates the speech preached ethnic hate, Milosˇ evic´ called for the prosperity of each of Serbia’s citizens ‘‘irrespective of his The question of Kosovo has produced three critical anti- national or religious affiliation’’ (Milosˇ evic´ , 1989). debates. Before the internationalization of the case (1999), Although the 1991 changes to the Constitution and brutal Kosovo was mainly studied in Yugoslavia’s specialist 4 SAGE Open circles (e.g., Cohen, 1993; Woodward, 1995). However, Yet, by calling a case unique we suggest that the les- with the end of the wars in Croatia and Bosnia, the focus sons learned from it cannot be applied elsewhere. This shifted to Kosovo, which produced the first examinations chain of reasoning leads to contradictions, which are of the socio-historical ties in the region and between the explored in the following section. two ethnic groups (Malcolm, 1999; Vickers, 1998). The first debate aims to scrutinize the history of the region. Contradictions Despite attempts to distort it, history frames Kosovo as the land of the Serbs, and the demographic changes This section elucidates contradictions that emerged as occurred due to foreign occupations. Then, politics inter- the direct consequence of the anti-debates. However, it vened, claiming that history should not play a role (unlike neither produces an exhaustive list of contradictions nor in other cases) since Kosovo is unique, representing the last analyses weaknesses of the Constitution in-depth but piece of Yugoslavia (Ahtisaari, 2008; UDI, 2008, par. 10). highlights the major discrepancies between reality and The second debate surrounds the legality and legitimacy of practice. Hence, issues, such as the role of the president, NATO’s campaign against the sovereign state outside the the lack of ‘‘ownership’’ of the Constitution, the decision UN, based on the mass human rights violations (e.g., not to grant veto power to minorities, the Constitution’s Cassese, 1999; Simma, 1999). The denial of this dispute is creation ‘‘for the people, from the people’’ but with no best summarized by the Council on Foreign Relations option for change by the people, and others, are omitted. (2007): ‘‘Kosovo is a unique situation because NATO was The section focuses on dilemmas caused by the triangle forced to intervene to stop and then reverse ethnic cleans- of the Rule of Law Mission in Kosovo (EULEX), the ing. Those conditions do not pertain to any of the con- Comprehensive Proposal for the Kosovo Status flicts that are usually brought up in this context.’’ This Settlement (Ahtisaari Plan), and the UNMIK. view not only disregards the violation of fundamental In March 1999, following several months of peace human rights present in the whole state and enduring negotiations between the Serbian government and the Albanian separatism but also introduces the dangerous Kosovar separatist Kosovo Liberation Army, NATO assumption of ‘‘ethnic cleansing.’’ Finally, the third debate launched a unilateral campaign against Serbia. Just stems from the need for a sustainable international mis- 78 days later, on 9 June, Serbia and NATO signed a sion to manage the power vacuum and regulate the ethnic cease-fire agreement in Kumanovo (North Macedonia). conflict. The denial of the third debate has two practical The next day, the UN Security Council approved goals: to acknowledge a ‘‘new reality’’ in which Serbia Resolution 1244. While the resolution safeguards exercises no governing authority (Ahtisaari, 2008, par. 7), Serbia’s sovereignty and integrity over its entire territory, and to confirm the KUC thesis, which asserts ‘‘Kosovo is Kosovo included, it also designates Kosovo as under a sui generis case,’’ based on the unprecedented involve- UN administration with the final political settlement still ment of the UN (Hilpold, 2009, p. 293). pending (UN SC Resolution, 1244, art. 11). This enabled While the shortcomings of the KUC thesis are the UN administration to do several reforms such as explained elsewhere, each anti-debate (or KUC argu- shifting capabilities to the provisional self-government ment) must be understood in its historical context. The (UN SC, 2001), and developing the ‘‘standards before first anti-debate disregards the historical ties in the status’’ policy (UN SC, 2003). Thus, Kosovo emerged region and that the Serbs lost their demographic super- from the conflict in its current form, with the law of bel- iority during two foreign occupations in which the ligerent occupation governing international missions. Albanians collaborated with occupants. Furthermore, it Since Kosovo’s current state emerged from an armed omits that Albanian separatism grew even when they had conflict between the two sides, it is the law of belligerent full control over the region; paradoxically, Albanians occupation that governs the international missions. The were better represented in Yugoslavia than in today’s Fourth Geneva Convention, among other documents of Kosovo. The second anti-debate discounts the legality international law of belligerent occupation, says that and legitimacy concerns of NATO’s intervention, although the intervention was deemed illegal but morally Protected persons who are in occupied territory shall not be necessary. However, this anti-debate assumes ‘‘ethnic deprived, in any case or in any manner whatsoever, of the cleansing’’ occurred, which abolishes any discourse on benefits of the present Convention by any change intro- whether the mass violation of human rights was exclu- duced, as the result of the occupation of a territory, into the sively against the Albanian minority or all political oppo- institutions or government of the said territory, nor by any nents of the regime. The third anti-debate excludes agreement concluded between the authorities of the occupied Serbia from any involvement in the process of institu- territories and the Occupying Power, nor by any annexation tional design and eliminates the possibility that the by the latter of the whole or part of the occupied territory model of Kosovo could be exported elsewhere. (Geneva Convention, 1949, art. 47). Semenov 5 One can easily conclude that the interim administration During that period, the Contact Group were holding had no right to make permanent changes in fundamental regular meetings with Martti Ahtisaari, an experienced institutions. However, Riegner (2010, p. 1056) notes that diplomat and expert for the Balkans, who was afterward while the international presence may look like an occupa- appointed by Ban Ki-moon, then the UN Secretary- tion, the international presence is founded on a multilat- General, to launch and oversee the direct negotiations eral document—Resolution 1244. The resolution calls for between Belgrade and Pristina. Since the two sides failed substantial autonomy and meaningful self-administration to make any progress under Ahtisaari’s supervision, he for Kosovo and respects the sovereignty and territorial presented the final plan envisaging ‘‘provisional indepen- integrity of Serbia. Therefore, the UN administration dence’’ (UN SC, 2007). The UK, the USA, and France had the right to pass the Constitutional Framework for backed the plan, while Russia declared it would use a Provisional Self-Government; however, the right to alie- veto to block Kosovo’s independence. In the aftermath, nate the land was not included. Any future settlement of Germany suggested further negotiations which would the status of Kosovo is under the authority of Serbia, as involve the USA, Russian, and EU. This last stage was Resolution 1244 confirms that ‘‘after the withdrawal an nothing but a political theater: agreed number of Yugoslav and Serb military and police [B]oth Russia and the US have in effect supported the max- personnel will be permitted to return to Kosovo’’ (UN imalist demands of their chosen proxies in the Balkans: SC, 1999, art. 4). Serbia and Kosovo. This neutered the most recent negotia- However, UNMIK and KFOR were ‘‘successful in tions of the US-EU-Russia troika, which were a last-ditch protecting Serbs as much as the Serbian police were in attempt to hammer out a compromise between Belgrade protecting Albanians’’ (Semenov, 2017, p. 96), during the and Pristina [.] Neither side had any incentive to compro- first year of the initiative, 230,000 Serbs and Roma fled mise, and the EU was exposed again as incapable of manag- (Burema, 2012, p. 7). In March 2004, there was a second ing a political crisis in its own backyard, while its taxpayers exodus of non-Albanian people caused by ‘‘sensational will be compelled to clear up the resulting mess (Glenny, and ultimately inaccurate reports’’ that some Serbs had 2007). drowned three Albanian children (Human Rights Watch, 2004). Kai Eide, the Special Envoy of the United The result was Kosovo’s UDI on 17th February 2009, Nations Secretary-General in Kosovo, said that the which produced several issues. The EU was effectively UN’s ‘‘leverage in Kosovo is diminishing’’ and the EU forced ‘‘into an onerous challenge – to maintain a status should assume the dominant role as it could ‘‘offer pros- neutral mission in Kosovo whilst its members were pects in the framework of the European integration pro- everything but neutral to Kosovo’s status’’ (Semenov, cess’’ (UN SC, 2005). In the wake of Eide’s report, the 2017, p. 97). Once the UN decided that Resolution 1244 UN Security Council (2005) began ‘‘a political process to should remain, the EU neither wanted to send a mission determine Kosovo’s Future Status.’’ However, the USA outside of the UN framework nor refrain from deploying and Russia did not want to hand over the status talks to it. As a compromise, the EULEX undertakes mandates the EU. The Contact Group, which includes the USA, of the ESDP Rule of Law Mission as envisaged by the Russia, as well as the UK, France, Germany, and Italy, Ahtisaari Plan but maintains the status-neutral frame- determined that the province’s future status ‘‘should con- work under Resolution 1244. Since then, Kosovo oper- form with democratic values and European standards’’ ates under supervised independence, overseen by the and eradicated any option of unilateral use of force or International Civilian Representative (ICR), while the reverting to the pre-1999 state (Guiding Principle of the EU Special Representative in Kosovo (EUSR) is Contact Group, 2005, par.2, 6). The Contact Group in required to take a status-neutral position. Notably, that period was having regular meetings with Martti Pieter Feith was EUSR and ICR for 3 years. The EU Ahtisaari, an experienced diplomat and Balkan expert, solved this issue in May 2011; however, it is uncertain who was subsequently appointed by Ban Ki-moon, the how EULEX representatives operated within the legal then UN Secretary-General, to begin and supervise system of Kosovo that was not recognized under direct talks between Belgrade and Pristina. Since the two Resolution 1244. sides failed to make any progress under Ahtisaari’s This contradiction cannot compare those produced to supervision, he presented the final plan envisaging ‘‘pro- the Kosovo triangle (EULEX, UNMIK, and the visional independence’’ (UN SC, 2007). The UK, the Ahtisaari Plan). The Constitution states that it ‘‘is the USA, and France supported the proposal, while Russia highest legal act of the Republic of Kosovo’’ (2008, art. declared their plan to use a veto to block Kosovo’s inde- 16) while simultaneously the Ahtisaari Plan ‘‘takes prece- pendence. In the aftermath, Germany proposed new dence over all other legal provisions in Kosovo’’ (art. negotiations involving the USA, Russia, and the EU. 143, par.2). It is not unprecedented that international This final stage was essentially just political theater: agreements serve as a foundational principle for 6 SAGE Open constitutions. However, due to Russia’s disapproval, the envisaged 20 of 120 seats for minority representation Ahtisaari Plan was never adopted by the UN Security (art. 64). Kosovo’s constitution further promotes cul- Council. In other words, the plan is not an international tural segmentation by stating that Kosovo is a multi- agreement proper. Therefore, ‘‘the Ahtisaari Plan does ethnic society whose official languages are Albanian and not legally validate Kosovo’s Constitution – the reverse Serbian (art. 2 & 5). Furthermore, articles 59 grants occurs. Although the Ahtisaari Plan authorises the adop- members of minority communities to preserve ‘‘the tion of Kosovo’s Constitution, it had no legal power to essential elements of the minority’s identity, such as reli- do so’’ (Morina et al., 2011, p. 57). This is already an odd gion, language, traditions, and culture.’’ Finally, while situation, nevertheless, the EULEX mission deepens legal the constitution does not envisage veto power on any confusion. The Ahtisaari Plan envisages an international decision (like in Bosnia, for example), it requires a dou- mission to ‘‘assist Kosovo authorities in their progress’’ ble majority for constitutional amendments (art. 145).. If (Ahtisaari, 2008, art. 12), while the UDI similarly invites the minority veto is understood as a suspense veto, the ‘‘an international civilian presence to supervise our imple- Constitution meets this requirement as well. These argu- mentation of the Ahtisaari Plan, and a European Union- ments have convinced certain scholars that Kosovo suc- led rule of law mission’’ (UDI, art. 20). However, since cessfully employs all four principles of consociational the UN reaffirmed Resolution 1244, the UNMIK mis- democracy (Doli & Korenica, 2010). sion remains in force (Muharremi, 2010, p. 368). This Consociational democracy is not a ‘‘particular institu- legal contradiction is best summarized by Semenov tional arrangement as [much as] the deliberate joint (2020), 382): As UNMIK is not covered by Kosovo’s effort by the elites to stabilise the system’’ (Lijphart, consent to exercise its power under Resolution 1244, the 1969, p. 213). Instead, it is a ‘‘general type of democracy conclusion is that EULEX had no legal basis to exercise defined in terms of four broad principles’’ (Lijphart, its mandate under Kosovo’s Constitution [.] EULEX is 1982, 2008, p. 67). Put simply, it is underpinned by four established by the Ahtisaari Plan (which is not only lega- requirements that provide guidance for both informal lized by Kosovo’s Declaration of Independence but also and formal agreements. Consociational democracy is as takes precedence over the Constitution) but operates much about the procedure as the result itself. Evidently, under the umbrella of UNMIK which exists in the this institutional arrangement does not meet the precon- Constitution only as a historical fact. Put bluntly, ditions of consociational democracy because it is not an Kosovo’s constitutional framework legalizes Ahtisaari agreement between the two sides. Considering the envi- Plan—Ahtisaari Plan legalizes the EULEX mission, ronment in which the Constitution was adopted and that while EULEX is illegal under Kosovo’s Constitution. the international community never conferred a feeling of ‘‘ownership’’ to Kosovo Albanian elites, it is clear that the Constitution is an arrangement that excluded elites Consociational Democracy on both sides (Marko, 2008). The arrangement fails to provide ‘‘universal participation,’’ as the Constitution is The aim of this section is twofold. First, it submits that not a result of an agreement between Albanian and Kosovo’s institutional design is based on consociational Serbian elites; thus, none of the elites possesses a feeling democracy. Second, this section examines the institu- of ownership over the Constitution. tional arrangement in practice to demonstrate how uni- The situation is more complex in practice. Lijphart lateral agreements that omit Kosovo Serbs and (1969, p. 216) identifies four requirements for a consocia- Belgrade from discussions lead to short-term, unten- tional democracy: able solutions. Consociationalism is a dominant model of conflict (1) That the elites have the ability to accommodate the management in ethnically divided societies that has been divergent interests and demands of the subcultures. (2) This championed by Arend Lijphard. He emphasizes two requires that they have the ability to transcend cleavages forms of power-sharing: grand coalition governments and to join in a common effort with the elites of rival sub- and proportional representation; two additional features cultures. (3) This in turn depends on their commitment to are segmental autonomy and the minority veto. the maintenance of the system and to the improvement of its From the legal perspective, Kosovo’s institutional cohesion and stability. (4) Finally, all of the above require- arrangement satisfies all four requirements of consocia- ments are based on the assumption that the elites under- tional democracy. First of all, Kosovo’s Constitution stand the perils of political fragmentation. guarantees a Minister and Deputy Minister roles in the Initially, two of these requirements were not satisfied. In Government (INQAAHE, 2008, art. 96). Therefore, the grand coalition requirement is satisfied. Therefore, the the grand coalition government, one place is guaranteed grand coalition argument is satisfied. In the framework for a representative of Kosovo Serbs; however, this of proportional representation, the Constitution requirement was unlikely to produce a proper Semenov 7 representative, since the candidate does not necessarily for Serbia to survive, insisting, however, that Kosovo is have to be from a Serb minority party. Participation pre- part of Serbia. This position has become a cornerstone sents an even bigger challenge. Although the of Serbia’s politics and a point leveraged by nationalist Constitution guarantees 10 seats to Kosovo Serbs in the media (see Jovanovic´ , 2018, 2021). assembly, the boycott prior to the Brussels Agreement The second assertion of this approach is moderate reconfirms that unilaterally given rights remain defunct and modest in its scope: only when Kosovo is ready for in practice without elite agreements. However, after the full membership in the EU will its status be of principal Brussels Agreement (2013), Belgrade pushed Kosovo importance. Thus, the dialog over statehood should be Serbs into Kosovo’s institutions and effectively orga- postponed, and economic issues in the region that can be nized their elections within the Kosovo constitutional solved by technical agreements should be the focus framework. Similarly, the Brussels Agreement (2013, art. (Economides & Ker-Lindsay, 2015). In this vein, through 6) envisages a ‘‘community of Serbian communities,’’ the Brussels Agreement, the EU has successfully decon- which guarantees segmental autonomy to the Serbian structed a sensitive political question into technical dis- minority. Therefore, the Brussels Agreement is an putes (Visoka & Doyle, 2016). The Brussels Agreement arrangement of two groups of elites to further legitimize produced an unequivocally good result—the two sides the Constitution of Kosovo. Nevertheless, though the sat together to discuss questions of vital importance for Agreement improves ordinary people’s lives, it is not a ordinary people in Kosovo, producing valuable compro- panacea for Kosovo’s challenges. mises such as integrated boundary management, recogni- tion of documents, and Serbia’s promise not to obstruct Kosovo’s path to the EU. However, by putting aside Consensus highly contested political issues, the Agreement unmasked urgent problems without solving them. While We have seen the consequences of solutions based on Kosovo Albanians call it the Agreement, Serbs refer to it unilateral or partially forced decisions. This section anal- as the Brussels Conclusion. Since Serbia’s parliament yses the other side of the coin—the approach that never ratified the Agreement, there is a possibility that a acknowledges status as an all-consuming dispute and future regime will argue that it is not binding for Serbia. recognizes the solution must include consensus. Similarly, the Supreme Court of Serbia ruled the agree- This approach assumes that Serbia’s politics regarding ment on Civil Registry and Cadastral Record to be ‘‘Kosovo and Europe’’ is not maintainable and that, at unconstitutional. Apart from this issue, there is another some point, the EU will force Serbia to decide, a decision question looming in the background: there is ‘‘a fine dif- that will be fueled by economic considerations. This view ference between Serbia’s rights and the rights of Kosovo paints a picture of Serbia’s politics as inconsistent and Serbs in Kosovo. From Serbia’s perspective, the Brussels chaotic: ‘‘Quite the contrary – Serbia drew the red line in Agreements only secure the rights of Serbs in the prov- the early days after democratic changes and that strategy ince’’ (Semenov, 2020, p. 384). has become the cornerstone of Serbia’s politics regarding The Brussels Agreement exposed a number of things, Kosovo’’ (Semenov, 2017, p. 89). The red line was drawn even though its primary aim was not successful—it failed by Zoran indic´ and popularized by Vojislav Kosˇ tunica. to improve the lives of the two communities in Kosovo. indic´ (2001) claimed that the final solution for Kosovo First, Belgrade and Pristina are prepared to negotiate should be neither making Kosovo a Serbian province, as and even compromise on certain issues. Second, it was before 1999, nor gaining its independence. Kosovo’s political status remains a precondition for the Kosˇ tunica (2011) further expanded on this idea, coining normalization of life in the area. Lastly, and most impor- the phrase ‘‘more than autonomy – less than indepen- tantly, it affirms the EU’s leverage to assist in developing dence.’’ During the Kosˇ tunica-Tadic´ coalition, there a final solution. Both communities demonstrated that were certain discrepancies such as Serb participation in they understand that pursuing the EU’s path is in their interim Kosovo institutions, however, the red line interest and showed that they were ready to compromise remained—‘‘Serbia could not accept the independence of on their demands and agree to European supervision. Kosovo and that only substantial autonomy of Kosovo within Serbia would provide stability and peace’’ For Pristina, it means no longer insisting on Kosovo (Spasojevic, 2017, p. 114). Subsequently, Ivica Dacˇ ic´ and being a sovereign state, while, for Belgrade, it means ced- ´ ing jurisdiction to the EU authorities. This chain of rea- Boris Tadic engaged in the politics of fear, refusing to soning indicates that both elites implicitly agree that sign agreements with the other side even while trying to Kosovo functions as an EU protectorate and any status appeal to the international community. In contrast, agreed upon by the main actors is a more sustainable Vucˇ ic´ (2019), Serbia’s current strongman, admits that solution than any unilateral decision. negotiations with Kosovo Albanians are the only way 8 SAGE Open Conclusions Notes 1. In this approach, a group of authors contributes to the In considering Kosovo’s two-layer problem—(a)What is North Kosovo discourse without discussing the political the status of Kosovo? and (b)Which institutions are most status of Kosovo (Troncota˘ , 2018; Vulovic´ , 2020; Zupancˇ icˇ , appropriate for this multicultural society with an agreed 2019). status?—as well as the historical context, academic dis- 2. This solution belongs to the category of exclusive nation- putes, and offered solutions, the following conclusions building in which the process occurs only among a few peo- can be made: ple or one ethnic group. 3. Except in German-controlled North Kosovo. 4. For the legal counterarguments, see Jovanovic´ (2011). For First, the history of Kosovo demonstrates that events the political science perspective, see Berg (2009) and in the 1990s can be understood in favor of both Economides (2013). Kosovo Albanians and Kosovo Serbs. Delving deeper 5. As a senior official from Brussels noted, ‘‘they are clearly back in time, it becomes easier to blur the line between trying to undermine the EU – of that there is no doubt’’ myth and reality. (Glenny, 2007). Similarly, Alberto Navarro, then the Second, the introduction of the thesis of Kosovo as a Spanish Minister for Europe, expressed his frustration that sui generis case has produced various legal and practi- ‘‘the future of Kosovo has been decided in Washington and cal impediments. This thesis also has excluded all to some extent in Moscow, and not in Europe’’ (BBC, scholars who disagreed with it from participating in 2008). the institutional design of Kosovo. 6. So far, 23 member states of the EU have recognized Third, the consociational model of democracy was the Kosovo; five members vigorously refuse to do so. 7. It can be understood as an absolute, applied to all decisions, standard for the authors of Kosovo’s Constitution. and as a suspensive, applied to certain specified decisions However, while the procedures of this arrangement do (Lijphart, 2008). not meet the requirement of consocialism, the Brussels 8. Lijphart uses the term ‘‘universal participation’’; the precon- Agreement is a true ‘‘deal of cartels’’ that further legit- dition is best understood by Dahrendorf’s (1967, p. 276) imizes the Constitution of Kosovo. term ‘‘cartel of elites.’’ Fourth, the EU’s efforts to normalize relations between Belgrade and Pristina through deconstructing References political disputes into technical agreements confirm that the implementation of the Brussels Agreement is Ahtisaari, M. (2008). The Comprehensive Proposal for the almost impossible. Nonetheless, the Brussels Kosovo Status Settlement. S/2008/168. Agreement and EULEX demonstrate the strong lever- Avramov, S. (2008). 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SAGE OpenSAGE

Published: Dec 1, 2022

Keywords: The EU; Serbia; Kosovo; consensus; consociationalism

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