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

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 indisputable 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

Introduction

Since Yugoslavia’s dissolution, Kosovo has been examined in not only in conflict studies, international relations, and international law, but also in the fields of political theory, ethics, and philosophy. The complexity of the case has invited scholars to abandon their comfort zones and “imagine themselves as moral agents in a mission civilisatrice.” Indeed, “Kosovo has come to be a debate about ourselves, about what we hold as normal and what exceptional” (Koskenniemi, 2008, p. 162). This blend of academic fields has produced superb readings and provoked many innovative and courageous approaches. However, although the conflict in Kosovo has had extensive coverage in academic circles and media, few scholarly publications analyze Kosovo’s two-layer problem: (a)What is the status of Kosovo? and (b) Which institutions are most appropriate for this multicultural society with an agreed status? While some authors focus on solving the status question (Bieber, 2019; Dodds et al., 2014; Semenov, 2017; Yannis, 2009; for accurate predictions prior to 2008, see: Tziampiris, 2005, 2006), most of the Kosovo-related academic literature is devoted to the analysis of the present provisional political arrangement and institutional design (Baracani, 2020; Doli & Korenica, 2011; Fort, 2018; Visoka, 2017, 2018).¹ Both groups have their assumptions.

The latter group of scholars offers institutional design options, but these are usually based on the assumption that Kosovo has acquired independence and now has the task of building stable and sustainable institutions. Thus, these recommendations for institutional design, however innovative, are doomed to fail without (at least) the tacit consent of Serbia’s government and the participation of Kosovo Serbs. As Mehmeti (2017), pp. 216–242), an advocate of this approach, notes, if we are to acknowledge “dual sovereignty in action,” there are two possible solutions. While the first solution implies forced, arbitrary and unilateral decisions which historically have only postponed the challenges, the second solution requires the involvement of both to ensure a sustainable and long-lasting settlement.

The unilateral declaration of independence (UDI) did not solve either problem but, rather, unpacked the second layer without consensus on status, thereby excluding those who do not accept Kosovo as a sovereign state from the debate on institutional design. This exclusion is not accidental; it represents the systematic obstruction of academic debates on Kosovo by introducing the “Kosovo as a unique case” (KUC) thesis, and each debate has its anti-debate. As such, the paper provides a brief historical review of the uses and misuses of the KUC thesis. Following the distinction of debates and anti-debates, it describes paradoxes caused by this approach. The paper posits that Kosovo’s institutions were designed consistent with consociational democracy, and it considers institutions and practices against this model. Notably, the proponents of this approach assume Kosovo’s statehood as a matter of fact and concentrate on state-building and the process of reconciliation rather than status. For them, the international missions are in Kosovo to help the region reach the capacity to govern its territory. Hence, once it acquires this capacity, it will acquire the legal and legitimate power to govern, and citizens will have a fully recognized state that will foster patriotism and participation, the narrative of which will be written alongside the building of the state. This approach solves one side of the problem, without addressing Serbia and the Serbian minority in Kosovo.² Ignoring this aspect may be a solution in the short run; however, without consensus among Kosovo Albanians, Kosovo Serbs, and Serbia, the Kosovo question remains—the Serbs are unlikely to abandon the dream of regaining Kosovo. Any plausible solution regarding Kosovo’s status must involve Kosovo Albanians, Kosovo Serbs, and Serbia.

The former group rightly acknowledges that the status question is a condicio sine qua non for Kosovo’s economic and political development. However, the given proposals are often impractical and influenced by current regimes’ agendas. The first category of proposals comprises unrealistic solutions, such as the partition of Kosovo and Kosovo as a part of Serbia. The second category holds that only when Kosovo is ready for full membership in the EU will its status be of principal importance; therefore, the dialog over statehood should be postponed, and the focus should be on economic issues in the region that can be solved by technical agreements. The second variation of the approach is the concern of this paper. Considering the poor economic conditions in the region, this solution sounds logical and plausible. However, this reasoning fails to recognize that only an agreed status can engender the stability necessary for economic development; Kosovo’s unstable environment does not invite investment. Foreign aid will not be available in the long term, and Kosovo must produce and create goods. The proponents of this approach believe that a spillover effect from European integration could ease the relationship between the Albanians and the Serbs. The paper submits that the EU uses neo-functional peace to facilitate political disputes between Belgrade and Pristina and considers the highest achievement of this process—the Brussels Agreement (cf. Baracani, 2020; Bergmann & Niemann, 2018; Visoka & Doyle, 2016). In light of recent events in Kosovo, the paper asks whether low politics, technical agreements, and the ambiguous nature of the language can have a spillover effect on high-level politics and solve urgent issues.

Historical Context

Several explanations exist for the Yugoslav conflicts. Some of the main reasons posited are ancient hatreds, the influence of the political and intellectual elite, and external influences. Yet, the aim of this section is not to give a comprehensive record of the region’s history nor to analyze explanations. Instead, its goal is to examine the political idea that “the Serbs are aggressors – the Albanians are victims.” Kosovo’s tumultuous history must be discussed as the further the Albanians and the Serbs go back in time, the simpler it is for them to argue “whatever they want in order to find support for their view of the present” (Judah, 2008, p. 30). Nonetheless, three periods shaped Kosovo’s demographic picture: the “Great Migration,” World War II, and the period between the 1974 Constitution and the 1989 Constitution.

In 1688, the Serbs, encouraged by the Habsburg Empire, rose against the Ottoman Empire; however, the Austrians were defeated in the Kacanik Gorge, resulting in brutal Ottoman vengeance. Tens of thousands of Serbs and Albanian Catholics were forced to immigrate which led to Kosovo becoming depopulated. Simultaneously, the Ottomans encouraged “resettlement here with loyal Albanian Muslims, many of whom were now to come down from the mountains of Albania” (Judah, 2008, p. 33; cf. Malcolm, 1999, pp. 139–160).

However, the question of Kosovo escalated in 1878, the year Serbia officially gained independence from the Ottoman Empire. In the same year, the League of Prizren was founded to create an autonomous all-Albanian administration within the Empire (Kola, 2003). Two different ideologies and nationalism were about to clash—Kosovo was at stake. On the one hand, while the Great Powers granted Albanian independence, many Albanians were left outside the newly formed states. On the other hand, the Serbs had won three wars (the first and second Balkan wars and World War I) in the early 20th century, earning strong credibility in the eyes of their allies, and Serbia had doubled its territory, which included Kosovo (Malcolm, 1999, p. 257). Although Albanian frustration was growing, no major changes occurred until World War II. During World War II, the situation dramatically changed, when Germany and its allies occupied Serbia; the Albanians controlled the Serbian population in Kosovo.³ Though they committed monstrous crimes, the new communist elite and Josip Broz did not prosecute the Albanians in exchange for political support (Avramov, 2008; Kola, 2003, p. 83). This cooperation was partially rewarded with an autonomous status. However, Kosovo remained within the sovereignty of the Socialist Republic of Serbia, contrary to Albanian aims (Malcolm, 1999, p. 316). The 1963 Constitution upgraded the region to the status of a province, but once again, Kosovo’s autonomy was guaranteed by Serbia (SFRY Constitution, 1963, art. 111–112). Nonetheless, this Constitution was significant because Amendment VIII guaranteed constitutional equality among nations and encouraged the Albanians to seek additional rights (e.g., the University of Pristina offered classes in Albanian), which led to the creation of the Albanian elite. With the creation of the new Kosovo Albanian elite, the University of Pristina, “once flagged as a showcase of inter-ethnic coexistence,” developed into a “fortress of nationalism” (Kostovičova, 2005, p. 44). The pinnacle of this nationalistic enthusiasm was the Albanian demonstration in 1981, which “shattered any semblance of brotherhood and unity at the university and in the province as a whole” (Kostovičova, 2005, p. 45). “Positive discrimination in favour of the Albanians in Kosovo” in reality meant “the virtual Albanisation of public life in Kosovo” (Vickers, 1998, p. 180).

After Broz’s death, ethnic tensions escalated further; in 1981, at a mass demonstration, the Albanians shouted, “We want a unified Albania,” which may imply that Kosovo Albanians already saw Kosovo as an independent entity. The 1980s saw a new exodus of the Serbian population: “Serbs felt they were harassed to leave their farms and houses,” often agreeing to sell their properties for above-market prices. (Judah, 2008, pp. 59–60). One can reasonably argue that “Albanian repression in the 1970s and the beginning of the 1980s becomes the cause which triggers the effect – the response of the Serbian state” (Jovanović, 2011, p. 359).

The above-mentioned developments created favorable conditions for Slobodan Milošević, who was perceived as a messiah among Kosovo Serbs. In 1987, he consoled Kosovo Serbs when the masses yelled, “they beat us” (they being the police, mostly comprised of Albanians). Milošević replied with words that still echo in the ears of the Serbs: “no one shall beat you.” These words meant that Kosovo Serbs would be no longer face discrimination on their land. Interestingly enough, members of the EU parliament portrayed Kosovo Serbs as victims at that time. However, once Milošević came to power, the EU adopted an entirely different narrative, stating that Belgrade is a threat to Kosovo Albanians’ human rights (Radeljic, 2017, pp. 64–65).

In 1989, on the 600th anniversary of the Kosovo Battle, he returned to Kosovo to deliver his most infamous speech. Despite the widely accepted opinion that the speech preached ethnic hate, Milošević called for the prosperity of each of Serbia’s citizens “irrespective of his national or religious affiliation” (Milošević, 1989). Although the 1991 changes to the Constitution and brutal human rights violations are vital considering Milošević’s politics, their interpretations are often not fair. The Constitution was revised with the full participation of the federal bodies, and the amendments were approved by the Kosovo Assembly (International Court of Justice, 2009). Furthermore, as Jovanović (2011, pp. 356–357) indicates, Serbia never entirely abolished the autonomy of Kosovo Albanians: the 1989 constitutional amendments changed “unprecedented competences of an autonomous regime within a larger political unit,” while according to the 1990 Constitution, Kosovo preserved territorial autonomy and control over aspects vital for minorities such education, social protection, language, etc.

On the other hand, it is true that Milošević’s regime violated the fundamental human rights of Kosovo Albanians. However, it should be emphasized that instances of severe police misconduct were not exclusively directed toward the Albanian minority, since police brutality was documented throughout the entire state (UN Economic and Social Council, 1998).

It is also important to mention, in 1992, failed to seize the opportunity to topple Milosevic:

the million Albanian votes could undoubtedly have ousted Milosevic, but as the Kosovar leadership admitted at the time, they did not want him to go. Unless Serbia continued to be labelled as profoundly evil – and they themselves, by virtue of being anti-Serb, as the good guys – they were unlikely to achieve their goals. It would have been a disaster for them if a peacemonger like Panic had restored human rights, since this would have left them with nothing but a bare political agenda to change borders (Vickers, 1998, p. 263).

This act of collective refusal to vote can be interpreted as a misuse of constitutional rights—“nullus commodum capere de sua iniuria– no one may derive an advantage from their own unlawful acts” (Jovanović, 2011, p. 15). To summarize, demographic changes in Kosovo occurred in two periods of foreign occupation and during the last two decades of the communist regime. During these periods, the ethnic ratio changed to the advantage of the Albanians. Furthermore, the separatist ambitions of Kosovo Albanians, which have been constant since 1878, continued when Kosovo was granted unprecedented autonomy in 1974. Finally, the violation of human rights occurred; however, it was not exclusively related to Kosovo. In view of these three facts, the next section explains the insurmountable political obstacles that confront the major debates on Kosovo.

The Anti-Debates

The question of Kosovo has produced three critical anti-debates. Before the internationalization of the case (1999), Kosovo was mainly studied in Yugoslavia’s specialist circles (e.g., Cohen, 1993; Woodward, 1995). However, with the end of the wars in Croatia and Bosnia, the focus shifted to Kosovo, which produced the first examinations of the socio-historical ties in the region and between the two ethnic groups (Malcolm, 1999; Vickers, 1998). The first debate aims to scrutinize the history of the region. Despite attempts to distort it, history frames Kosovo as the land of the Serbs, and the demographic changes occurred due to foreign occupations. Then, politics intervened, claiming that history should not play a role (unlike in other cases) since Kosovo is unique, representing the last piece of Yugoslavia (Ahtisaari, 2008; UDI, 2008, par. 10). The second debate surrounds the legality and legitimacy of NATO’s campaign against the sovereign state outside the UN, based on the mass human rights violations (e.g., Cassese, 1999; Simma, 1999). The denial of this dispute is best summarized by the Council on Foreign Relations (2007): “Kosovo is a unique situation because NATO was forced to intervene to stop and then reverse ethnic cleansing… Those conditions do not pertain to any of the conflicts that are usually brought up in this context.” This view not only disregards the violation of fundamental human rights present in the whole state and enduring Albanian separatism but also introduces the dangerous assumption of “ethnic cleansing.” Finally, the third debate stems from the need for a sustainable international mission to manage the power vacuum and regulate the ethnic conflict. The denial of the third debate has two practical goals: to acknowledge a “new reality” in which Serbia exercises no governing authority (Ahtisaari, 2008, par. 7), and to confirm the KUC thesis, which asserts “Kosovo is a sui generis case,” based on the unprecedented involvement of the UN (Hilpold, 2009, p. 293).

While the shortcomings of the KUC thesis are explained elsewhere,⁴ each anti-debate (or KUC argument) must be understood in its historical context. The first anti-debate disregards the historical ties in the region and that the Serbs lost their demographic superiority during two foreign occupations in which the Albanians collaborated with occupants. Furthermore, it omits that Albanian separatism grew even when they had full control over the region; paradoxically, Albanians were better represented in Yugoslavia than in today’s Kosovo. The second anti-debate discounts the legality and legitimacy concerns of NATO’s intervention, although the intervention was deemed illegal but morally necessary. However, this anti-debate assumes “ethnic cleansing” occurred, which abolishes any discourse on whether the mass violation of human rights was exclusively against the Albanian minority or all political opponents of the regime. The third anti-debate excludes Serbia from any involvement in the process of institutional design and eliminates the possibility that the model of Kosovo could be exported elsewhere.

Yet, by calling a case unique we suggest that the lessons learned from it cannot be applied elsewhere. This chain of reasoning leads to contradictions, which are explored in the following section.

Contradictions

This section elucidates contradictions that emerged as the direct consequence of the anti-debates. However, it neither produces an exhaustive list of contradictions nor analyses weaknesses of the Constitution in-depth but highlights the major discrepancies between reality and practice. Hence, issues, such as the role of the president, the lack of “ownership” of the Constitution, the decision not to grant veto power to minorities, the Constitution’s creation “for the people, from the people” but with no option for change by the people, and others, are omitted. The section focuses on dilemmas caused by the triangle of the Rule of Law Mission in Kosovo (EULEX), the Comprehensive Proposal for the Kosovo Status Settlement (Ahtisaari Plan), and the UNMIK.

In March 1999, following several months of peace negotiations between the Serbian government and the Kosovar separatist Kosovo Liberation Army, NATO launched a unilateral campaign against Serbia. Just 78 days later, on 9 June, Serbia and NATO signed a cease-fire agreement in Kumanovo (North Macedonia). The next day, the UN Security Council approved Resolution 1244. While the resolution safeguards Serbia’s sovereignty and integrity over its entire territory, Kosovo included, it also designates Kosovo as under UN administration with the final political settlement still pending (UN SC Resolution, 1244, art. 11). This enabled the UN administration to do several reforms such as shifting capabilities to the provisional self-government (UN SC, 2001), and developing the “standards before status” policy (UN SC, 2003). Thus, Kosovo emerged from the conflict in its current form, with the law of belligerent occupation governing international missions. Since Kosovo’s current state emerged from an armed conflict between the two sides, it is the law of belligerent occupation that governs the international missions. The Fourth Geneva Convention, among other documents of international law of belligerent occupation, says that

Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory (Geneva Convention, 1949, art. 47).

One can easily conclude that the interim administration had no right to make permanent changes in fundamental institutions. However, Riegner (2010, p. 1056) notes that while the international presence may look like an occupation, the international presence is founded on a multilateral document—Resolution 1244. The resolution calls for substantial autonomy and meaningful self-administration for Kosovo and respects the sovereignty and territorial integrity of Serbia. Therefore, the UN administration had the right to pass the Constitutional Framework for Provisional Self-Government; however, the right to alienate the land was not included. Any future settlement of the status of Kosovo is under the authority of Serbia, as Resolution 1244 confirms that “after the withdrawal an agreed number of Yugoslav and Serb military and police personnel will be permitted to return to Kosovo” (UN SC, 1999, art. 4).

However, UNMIK and KFOR were “successful in protecting Serbs as much as the Serbian police were in protecting Albanians” (Semenov, 2017, p. 96), during the first year of the initiative, 230,000 Serbs and Roma fled (Burema, 2012, p. 7). In March 2004, there was a second exodus of non-Albanian people caused by “sensational and ultimately inaccurate reports” that some Serbs had drowned three Albanian children (Human Rights Watch, 2004). Kai Eide, the Special Envoy of the United Nations Secretary-General in Kosovo, said that the UN’s “leverage in Kosovo is diminishing” and the EU should assume the dominant role as it could “offer prospects in the framework of the European integration process” (UN SC, 2005). In the wake of Eide’s report, the UN Security Council (2005) began “a political process to determine Kosovo’s Future Status.” However, the USA and Russia did not want to hand over the status talks to the EU. The Contact Group, which includes the USA, Russia, as well as the UK, France, Germany, and Italy, determined that the province’s future status “should conform with democratic values and European standards” and eradicated any option of unilateral use of force or reverting to the pre-1999 state (Guiding Principle of the Contact Group, 2005, par.2, 6). The Contact Group in that period was having regular meetings with Martti Ahtisaari, an experienced diplomat and Balkan expert, who was subsequently appointed by Ban Ki-moon, the then UN Secretary-General, to begin and supervise direct talks between Belgrade and Pristina. Since the two sides failed to make any progress under Ahtisaari’s supervision, he presented the final plan envisaging “provisional independence” (UN SC, 2007). The UK, the USA, and France supported the proposal, while Russia declared their plan to use a veto to block Kosovo’s independence. In the aftermath, Germany proposed new negotiations involving the USA, Russia, and the EU. This final stage was essentially just political theater: During that period, the Contact Group were holding regular meetings with Martti Ahtisaari, an experienced diplomat and expert for the Balkans, who was afterward appointed by Ban Ki-moon, then the UN Secretary-General, to launch and oversee the direct negotiations between Belgrade and Pristina. Since the two sides failed to make any progress under Ahtisaari’s supervision, he presented the final plan envisaging “provisional independence” (UN SC, 2007). The UK, the USA, and France backed the plan, while Russia declared it would use a veto to block Kosovo’s independence. In the aftermath, Germany suggested further negotiations which would involve the USA, Russian, and EU. This last stage was nothing but a political theater:

[B]oth Russia and the US have in effect supported the maximalist demands of their chosen proxies in the Balkans: Serbia and Kosovo. This neutered the most recent negotiations of the US-EU-Russia troika, which were a last-ditch attempt to hammer out a compromise between Belgrade and Pristina […] Neither side had any incentive to compromise, and the EU was exposed again as incapable of managing a political crisis in its own backyard, while its taxpayers will be compelled to clear up the resulting mess (Glenny, 2007).⁵

The result was Kosovo’s UDI on 17th February 2009, which produced several issues. The EU was effectively forced “into an onerous challenge – to maintain a status neutral mission in Kosovo whilst its members were everything but neutral to Kosovo’s status” (Semenov, 2017, p. 97).⁶ Once the UN decided that Resolution 1244 should remain, the EU neither wanted to send a mission outside of the UN framework nor refrain from deploying it. As a compromise, the EULEX undertakes mandates of the ESDP Rule of Law Mission as envisaged by the Ahtisaari Plan but maintains the status-neutral framework under Resolution 1244. Since then, Kosovo operates under supervised independence, overseen by the International Civilian Representative (ICR), while the EU Special Representative in Kosovo (EUSR) is required to take a status-neutral position. Notably, Pieter Feith was EUSR and ICR for 3 years. The EU solved this issue in May 2011; however, it is uncertain how EULEX representatives operated within the legal system of Kosovo that was not recognized under Resolution 1244.

This contradiction cannot compare those produced to the Kosovo triangle (EULEX, UNMIK, and the Ahtisaari Plan). The Constitution states that it “is the highest legal act of the Republic of Kosovo” (2008, art. 16) while simultaneously the Ahtisaari Plan “takes precedence over all other legal provisions in Kosovo” (art. 143, par.2). It is not unprecedented that international agreements serve as a foundational principle for constitutions. However, due to Russia’s disapproval, the Ahtisaari Plan was never adopted by the UN Security Council. In other words, the plan is not an international agreement proper. Therefore, “the Ahtisaari Plan does not legally validate Kosovo’s Constitution – the reverse occurs. Although the Ahtisaari Plan authorises the adoption of Kosovo’s Constitution, it had no legal power to do so” (Morina et al., 2011, p. 57). This is already an odd situation, nevertheless, the EULEX mission deepens legal confusion. The Ahtisaari Plan envisages an international mission to “assist Kosovo authorities in their progress” (Ahtisaari, 2008, art. 12), while the UDI similarly invites “an international civilian presence to supervise our implementation of the Ahtisaari Plan, and a European Union-led rule of law mission” (UDI, art. 20). However, since the UN reaffirmed Resolution 1244, the UNMIK mission remains in force (Muharremi, 2010, p. 368). This legal contradiction is best summarized by Semenov (2020), 382): As UNMIK is not covered by Kosovo’s consent to exercise its power under Resolution 1244, the conclusion is that EULEX had no legal basis to exercise its mandate under Kosovo’s Constitution […] EULEX is established by the Ahtisaari Plan (which is not only legalized by Kosovo’s Declaration of Independence but also takes precedence over the Constitution) but operates under the umbrella of UNMIK which exists in the Constitution only as a historical fact. Put bluntly, Kosovo’s constitutional framework legalizes Ahtisaari Plan—Ahtisaari Plan legalizes the EULEX mission, while EULEX is illegal under Kosovo’s Constitution.

Consociational Democracy

The aim of this section is twofold. First, it submits that Kosovo’s institutional design is based on consociational democracy. Second, this section examines the institutional arrangement in practice to demonstrate how unilateral agreements that omit Kosovo Serbs and Belgrade from discussions lead to short-term, untenable solutions.

Consociationalism is a dominant model of conflict management in ethnically divided societies that has been championed by Arend Lijphard. He emphasizes two forms of power-sharing: grand coalition governments and proportional representation; two additional features are segmental autonomy and the minority veto.

From the legal perspective, Kosovo’s institutional arrangement satisfies all four requirements of consociational democracy. First of all, Kosovo’s Constitution guarantees a Minister and Deputy Minister roles in the Government (INQAAHE, 2008, art. 96). Therefore, the grand coalition requirement is satisfied. Therefore, the grand coalition argument is satisfied. In the framework of proportional representation, the Constitution envisaged 20 of 120 seats for minority representation (art. 64). Kosovo’s constitution further promotes cultural segmentation by stating that Kosovo is a multi-ethnic society whose official languages are Albanian and Serbian (art. 2 & 5). Furthermore, articles 59 grants members of minority communities to preserve “the essential elements of the minority’s identity, such as religion, language, traditions, and culture.” Finally, while the constitution does not envisage veto power on any decision (like in Bosnia, for example), it requires a double majority for constitutional amendments (art. 145). . If the minority veto is understood as a suspense veto,⁷ the Constitution meets this requirement as well. These arguments have convinced certain scholars that Kosovo successfully employs all four principles of consociational democracy (Doli & Korenica, 2010).

Consociational democracy is not a “particular institutional arrangement as [much as] the deliberate joint effort by the elites to stabilise the system” (Lijphart, 1969, p. 213). Instead, it is a “general type of democracy defined in terms of four broad principles” (Lijphart, 1982, 2008, p. 67). Put simply, it is underpinned by four requirements that provide guidance for both informal and formal agreements. Consociational democracy is as much about the procedure as the result itself. Evidently, this institutional arrangement does not meet the preconditions of consociational democracy because it is not an agreement between the two sides.⁸ Considering the environment in which the Constitution was adopted and that 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 on both sides (Marko, 2008). The arrangement fails to provide “universal participation,” as the Constitution is not a result of an agreement between Albanian and Serbian elites; thus, none of the elites possesses a feeling of ownership over the Constitution.

The situation is more complex in practice. Lijphart (1969, p. 216) identifies four requirements for a consociational democracy:

(1) That the elites have the ability to accommodate the divergent interests and demands of the subcultures. (2) This requires that they have the ability to transcend cleavages and to join in a common effort with the elites of rival subcultures. (3) This in turn depends on their commitment to the maintenance of the system and to the improvement of its cohesion and stability. (4) Finally, all of the above requirements are based on the assumption that the elites understand the perils of political fragmentation.

Initially, two of these requirements were not satisfied. In the grand coalition government, one place is guaranteed for a representative of Kosovo Serbs; however, this requirement was unlikely to produce a proper representative, since the candidate does not necessarily have to be from a Serb minority party. Participation presents an even bigger challenge. Although the Constitution guarantees 10 seats to Kosovo Serbs in the assembly, the boycott prior to the Brussels Agreement reconfirms that unilaterally given rights remain defunct in practice without elite agreements. However, after the Brussels Agreement (2013), Belgrade pushed Kosovo Serbs into Kosovo’s institutions and effectively organized their elections within the Kosovo constitutional framework. Similarly, the Brussels Agreement (2013, art. 6) envisages a “community of Serbian communities,” which guarantees segmental autonomy to the Serbian minority. Therefore, the Brussels Agreement is an arrangement of two groups of elites to further legitimize the Constitution of Kosovo. Nevertheless, though the Agreement improves ordinary people’s lives, it is not a panacea for Kosovo’s challenges.

Consensus

We have seen the consequences of solutions based on unilateral or partially forced decisions. This section analyses the other side of the coin—the approach that acknowledges status as an all-consuming dispute and recognizes the solution must include consensus.

This approach assumes that Serbia’s politics regarding “Kosovo and Europe” is not maintainable and that, at some point, the EU will force Serbia to decide, a decision that will be fueled by economic considerations. This view paints a picture of Serbia’s politics as inconsistent and chaotic: “Quite the contrary – Serbia drew the red line in the early days after democratic changes and that strategy has become the cornerstone of Serbia’s politics regarding Kosovo” (Semenov, 2017, p. 89). The red line was drawn by Zoran Đinđić and popularized by Vojislav Koštunica. Đinđić (2001) claimed that the final solution for Kosovo should be neither making Kosovo a Serbian province, as it was before 1999, nor gaining its independence. Koštunica (2011) further expanded on this idea, coining the phrase “more than autonomy – less than independence.” During the Koštunica-Tadić coalition, there were certain discrepancies such as Serb participation in interim Kosovo institutions, however, the red line remained—“Serbia could not accept the independence of Kosovo and that only substantial autonomy of Kosovo within Serbia would provide stability and peace” (Spasojevic, 2017, p. 114). Subsequently, Ivica Dačić and Boris Tadić engaged in the politics of fear, refusing to sign agreements with the other side even while trying to appeal to the international community. In contrast, Vučić (2019), Serbia’s current strongman, admits that negotiations with Kosovo Albanians are the only way for Serbia to survive, insisting, however, that Kosovo is part of Serbia. This position has become a cornerstone of Serbia’s politics and a point leveraged by nationalist media (see Jovanović, 2018, 2021).

The second assertion of this approach is moderate and modest in its scope: only when Kosovo is ready for full membership in the EU will its status be of principal importance. Thus, the dialog over statehood should be postponed, and economic issues in the region that can be solved by technical agreements should be the focus (Economides & Ker-Lindsay, 2015). In this vein, through the Brussels Agreement, the EU has successfully deconstructed a sensitive political question into technical disputes (Visoka & Doyle, 2016). The Brussels Agreement produced an unequivocally good result—the two sides sat together to discuss questions of vital importance for ordinary people in Kosovo, producing valuable compromises such as integrated boundary management, recognition of documents, and Serbia’s promise not to obstruct Kosovo’s path to the EU. However, by putting aside highly contested political issues, the Agreement unmasked urgent problems without solving them. While Kosovo Albanians call it the Agreement, Serbs refer to it as the Brussels Conclusion. Since Serbia’s parliament never ratified the Agreement, there is a possibility that a future regime will argue that it is not binding for Serbia. Similarly, the Supreme Court of Serbia ruled the agreement on Civil Registry and Cadastral Record to be unconstitutional. Apart from this issue, there is another question looming in the background: there is “a fine difference between Serbia’s rights and the rights of Kosovo Serbs in Kosovo. From Serbia’s perspective, the Brussels Agreements only secure the rights of Serbs in the province” (Semenov, 2020, p. 384).

The Brussels Agreement exposed a number of things, even though its primary aim was not successful—it failed to improve the lives of the two communities in Kosovo. First, Belgrade and Pristina are prepared to negotiate and even compromise on certain issues. Second, Kosovo’s political status remains a precondition for the normalization of life in the area. Lastly, and most importantly, it affirms the EU’s leverage to assist in developing a final solution. Both communities demonstrated that they understand that pursuing the EU’s path is in their interest and showed that they were ready to compromise on their demands and agree to European supervision. For Pristina, it means no longer insisting on Kosovo being a sovereign state, while, for Belgrade, it means ceding jurisdiction to the EU authorities. This chain of reasoning indicates that both elites implicitly agree that Kosovo functions as an EU protectorate and any status agreed upon by the main actors is a more sustainable solution than any unilateral decision.

Conclusions

In considering Kosovo’s two-layer problem—(a)What is the status of Kosovo? and (b)Which institutions are most appropriate for this multicultural society with an agreed status?—as well as the historical context, academic disputes, and offered solutions, the following conclusions can be made:

First, the history of Kosovo demonstrates that events in the 1990s can be understood in favor of both Kosovo Albanians and Kosovo Serbs. Delving deeper back in time, it becomes easier to blur the line between myth and reality.

Second, the introduction of the thesis of Kosovo as a sui generis case has produced various legal and practical impediments. This thesis also has excluded all scholars who disagreed with it from participating in the institutional design of Kosovo.

Third, the consociational model of democracy was the standard for the authors of Kosovo’s Constitution. However, while the procedures of this arrangement do not meet the requirement of consocialism, the Brussels Agreement is a true “deal of cartels” that further legitimizes the Constitution of Kosovo.

Fourth, the EU’s efforts to normalize relations between Belgrade and Pristina through deconstructing political disputes into technical agreements confirm that the implementation of the Brussels Agreement is almost impossible. Nonetheless, the Brussels Agreement and EULEX demonstrate the strong leverage of the EU, as well as that any plausible solution regarding Kosovo’s status must involve Kosovo Albanians, Kosovo Serbs, and Serbia.

Fifth, the Brussels Agreement and EULEX demonstrate the silent consensus regarding the status of Kosovo as a European protectorate. It is formulated in Kosovo’s premise—“we obey European authority as long as we are independent of Serbia”—and in Serbia’s—“we obey European authority as long as we do not need to recognize Kosovo as an independent state.”

Footnotes

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Andrej Semenov

Notes

References

Ahtisaari

(2008). The Comprehensive Proposal for the Kosovo Status Settlement. S/2008/168.

Avramov

(2008). Genocid u Jugoslaviji 1941-1945, 1991. Akademija za Diplomatiju i Bezbednost.

Baracani

(2020). Evaluating EU actorness as a state-builder in ‘Contested’ Kosovo. Geopolitics, 25(2), 362–386. https://doi.org/10.1080/14650045.2018.1563890

BBC. (2008). EU splits on Kosovo recognition.

Berg

(2009). Re-examining sovereignty claims in changing territorialities: Reflections from ‘Kosovo Syndrome’. Geopolitics, 14(2), 219–234. https://doi.org/10.1080/14650040802693473

Bergmann

Niemann

(2018). From neo-functional peace to a logic of spillover in EU external policy: A response to Visoka and Doyle. JCMS Journal of Common Market Studies, 56(2), 420–438. https://doi.org/10.1111/jcms.12608

Bieber

(2019). What could a Serbia-Kosovo border swap achieve? New Eastern Europe, 36(2), 73–78.

Brussels Agreement. (2013). First agreement of principles governing the normalization of relations. Signed by Ivica Dačić and Hashim Thaçi.

Burema

(2012). Reconciliation in Kosovo: A few steps taken, a long road ahead. JEMIE, 11, 7–27. http://www.ecmi.de/fileadmin/downloads/publications/JEMIE/2012/Burema.pdf

10.

Cassese

(1999). Ex iniuria ius oritur: Are we moving towards international legitimation of forcible humanitarian countermeasures in the world community? European Journal of International Law, 10(1), 23–30. https://doi.org/10.1093/ejil/10.1.23

11.

Cohen

(1993). Broken bonds: The disintegration of Yugoslavia. Westview Press.

12.

Constitution of Kosovo. (2008). Adopted on 9 April 2008. Official gazette of Kosovo no.25, date 7 September 2012.

13.

Contact Group. (2005). Guiding principles of the Contact Group for a settlement of the status of Kosovo. In Letter dated 10 Nov from the President of the Security Council addressed to the Secretary-General (S/2005/709).

14.

Council on Foreign Relations. (2007). Serbs urged to accept Kosovo plan to gain European future. Interview with Daniel S. Fried. https://www.cfr.org/interview/serbs-urged-accept-kosovo-plan-gain-european-future

15.

Dahrendorf

(1967). Society and democracy in Germany. Doubleday.

16.

Đinđić

(2001). The last interview on BN Television. https://www.youtube.com/watch?v=a4__F3im7o0

17.

Dodds

Obradovic-Wochnik

Badran

(2014). The new institutionalism in the context of Kosovo’s transition: Regulatory institutions in contested states. East European Politics, 30(4), 436–457. https://doi.org/10.1080/21599165.2014.929572

18.

Doli

Korenica

(2010). Calling Kosovo’s constitution: A legal review. Denning LJ, 22, 51–85. https://doi.org/10.5750/dlj.v22i1.354

19.

Doli

Korenica

(2011). What about Kosovo’s Constitution: Is there anything special?. ICL Journal, 5(1), 49–70. https://doi.org/10.1515/icl-2011-0106

20.

Economides

(2013). Kosovo, self-determination and the international order. Europe-Asia Studies, 65(5), 823–836. https://doi.org/10.1080/09668136.2013.802130

21.

Economides

Ker-Lindsay

(2015). ‘Pre-accession Europeanization’: The Case of Serbia and Kosovo. JCMS Journal of Common Market Studies, 53(5), 1027–1044. https://doi.org/10.1111/jcms.12238

22.

Fort

(2018). From power-sharing arrangements to identity building: The case of Kosovo Serbs in Kosovo. Ethnopolitics, 17(5), 503–518. https://doi.org/10.1080/17449057.2018.1511159

23.

Geneva Convention. (1949). The Fourth Geneva Convention relative to the protection of civilian persons in time of war. International Committee of the Red Cross.

24.

Glenny

(2007). Black cloud over the Balkans. New Statesman.

25.

Hilpold

(2009). What role for academic writers in interpreting international law?–A rejoinder to Orakhelashvili. Chinese Journal of International Law, 8(2), 291–298. https://doi.org/10.1093/chinesejil/jmp013

26.

Human Rights Watch. (2004). Failure to protect: Anti-minority violence in Kosovo March 2004. Human Rights Watch, 16(6), 7.

27.

International Court of Justice. (2009). Written statement of the Government of the Republic of Serbia. Author.

28.

Jovanović

(2011). Is Kosovo and Metohija indeed a “Unique Case”. In Summers

(Ed.), Kosovo: A precedent?: The declaration of independence, the advisory opinion and implications for statehood, self-determination and minority rights (pp. 343–374). Brill.

29.

Jovanović

S. M.

(2018). Headlines as fake news: Discursive deception in Serbia’s daily Informer (2012–2018). Central and Eastern European Review, 12(1), 1–22. https://ideas.repec.org/a/vrs/caeeur/v12y2018i1p1-22n1.html

30.

Jovanović

S. M.

(2021). The portal ‘Nationalist’ as the nutshell of recent Serbian nationalism. National Identities, 23(2), 149–162. https://doi.org/10.1080/14608944.2020.1733511

31.

Judah

(2008). Kosovo: What everyone needs to know. Oxford University Press.

32.

Kola

(2003). The search for Greater Albania. Hurst & Company.

33.

Koskenniemi

(2008). ‘the lady doth protest too much’ Kosovo, and the turn to ethics in International Law. Modern Law Review, 65(2), 159–175. https://doi.org/10.1111/1468-2230.00373

34.

Kostovičova

(2005). The politics of identity and space. Routledge.

35.

Koštunica

(2011). Odbrana Kosova. Srpska knjizevna zadruga.

36.

Lijphart

(1969). Consociational democracy. World Politics, 21(2), 207–225. https://doi.org/10.2307/2009820

37.

Lijphart

(1982). Consociation: The model and its applications. In divided societies. In Rea

(Ed.), Political co-operation in divided Societies: A series of papers relevant to the conflict in Northern Ireland (pp. 166–186). Gill and Macmillan.

38.

Lijphart

(2008). Thinking about Democracy: Power sharing and majority rule in theory and practice. Routledge.

39.

Malcolm

(1999). Kosovo: A short history. New York University Press.

40.

Marko

(2008). The new Kosovo constitution in a regional comparative perspective. Review of Central and East European Law, 33(4), 437–450. https://doi.org/10.1163/157303508x339698a

41.

Mehmeti

L. I.

(2017). Perspectives of the normalization of relations between Kosovo and Serbia. In Mehmeti

L. I.

Radeljic

(Eds.), Kosovo and Serbia: Contested options and shared consequences (pp. 216–242). University of Pittsburgh Press.

42.

Milošević

(1989). Speech in Gazimestan. Compiled by the National Technical Information Service of the Department of Commerce of the U.S.

43.

Morina

Korenica

Doli

(2011). The relationship between international law and national law in the case of Kosovo: A constitutional perspective. International Journal of Constitutional Law, 9(1), 274–296. https://doi.org/10.1093/icon/mor020

44.

Muharremi

(2010). The European Union Rule of Law Mission in Kosovo (EULEX) from the perspective of Kosovo constitutional law. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 70, 357–379. https://www.zaoerv.de/70_2010/70_2010_2_a_357_380.pdf

45.

Radeljic

(2017). Europe and the post-Yugoslav space: From intervention to integration. In Mehmeti

L. I.

Radeljic

(Eds.), Kosovo and Serbia: Contested options and shared consequences (pp. 63–85). University of Pittsburgh Press.

46.

Riegner

(2010). The two faces of the internationalized pouvoir constituant: Independence and constitution-making under external influence in Kosovo. Goettingen Journal of International Law, 2, 1035. https://www.gojil.eu/issues/23/23_article_riegner.pdf

47.

Semenov

(2017). The EU, Kosovo and Serbia: The Quest for the Status. Central European Journal of International and Security Studies, 11(4), https://www.cejiss.org/images/issue_articles/2017-volume-11-issue-4-0/85-cejiss-cejiss-0417-electronic.pdf

48.

Semenov

(2020). Kosovo: A silent European consensus. International Studies, 57(4), 375–390. https://doi.org/10.1177%2F0020881720962939

49.

SFRY Constitution (1963). SFRY – The Constitution of the Socialist Federative Republic of Yugoslavia. Sluzbeni List SFRY.

50.

Simma

(1999). NATO, the UN and the use of force: Legal aspects. European Journal of International Law, 10(1), 1–22. https://doi.org/10.1093/ejil/10.1.1

51.

Spasojević

(2017). Serbian political parties and the Kosovo question. In Mehmeti

L. I.

Radeljic

(Eds.) Kosovo and Serbia: Contested options and shared consequences (pp. 106–129). University of Pittsburgh Press.

52.

Troncotă

(2018). ‘The association that dissociates’ – Narratives of local political resistance in Kosovo and the delayed implementation of the Brussels Agreement. Southeast European and Black Sea Studies, 18(2), 219–238. https://doi.org/10.1080/14683857.2018.1474585

53.

Tziampiris

(2005). Kosovo’s future sovereignty: A role for the European Union. Southeast European and Black Sea Studies, 5(2), 285–299. https://doi.org/10.1080/14683850500122950

54.

Tziampiris

(2006). Kosovo’s end Game: Sovereignty and stability in the Western Balkans. Defence Analyses Institute.

55.

UDI. (2008, 17 February). Kosovo Declaration of Independence.

56.

UN Economic and Social Council. (1998). Final report of Ms. Elisabeth Rehn, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia. Author.

57.

UN Security Council. (1999). Resolution 1244. S/RES/1244. Author.

58.

UN Security Council. (2001). Constitutional Framework for Provisional Self-Government. UNMIK/REG/2001/9. Author.

59.

UN Security Council. (2003). Standards for Kosovo. SC/7951. Author.

60.

UN Security Council. (2005). Letter dated 7 October 2005 from the Secretary-General addressed to the President of the Security Council. S/2005/635. Author.

61.

UN Security Council. (2007). Report of the Special Envoy of the Secretary-General on Kosovo’s future status. S/2007/168. Author.

62.

Vickers

(1998). Between Serb and Albanian: A history of Kosovo. Columbia University Press.

63.

Visoka

(2017). Shaping peace in Kosovo: The politics of peacebuilding and statehood. Springer.

64.

Visoka

(2018). Acting like a state: Kosovo and the everyday making of statehood. Routledge.

65.

Visoka

Doyle

(2016). Neo-functional peace: The European Union way of resolving conflicts. JCMS Journal of Common Market Studies, 54(4), 862–877. https://doi.org/10.1111/jcms.12342

66.

Vučić

(2019, May 27). Speech of President of the Republic of Serbia in the National Assembly of the Republic of Serbia. https://www.predsednik.rs/en/press-center/news/speech-of-president-of-the-republic-of-serbia-in-the-national-assembly-of-the-republic-of-serbia-27052019

67.

Vulović

(2020). Performing statehood in northern Kosovo: Discursive struggle over contested space. Cooperation and Conflict, 55(3), 326–346. https://doi.org/10.1177%2F0010836720906851

68.

Woodward

(1995). Balkan tragedy: Chaos and dissolution after the Cold war. Brookings Institution Press.

69.

Yannis

(2009). The politics and geopolitics of the status of Kosovo: The circle is never round. Southeast European and Black Sea Studies, 9(1-2), 161–170. https://doi.org/10.1080/14683850902723470

70.

Zupančič

(2019). EU peace-building in the north of Kosovo and psychosocial implications for the locals: A bottom up perspective on normative power Europe. Journal of Balkan and Near Eastern Studies, 21(5), 576–593. https://doi.org/10.1080/19448953.2018.1504379