By Ian Bancroft, Gerard Gallucci, September 04, 2010
Crafting A Special Status For Northern Kosovo
The International Court of Justice's (ICJ) long-awaited advisory opinion on Kosovo left unanswered core political questions raised by the 2008 declaration of independence.
The court did not address Kosovo's status as an "independent" state, nor the legality of its secession from Serbia. Instead, it responded to the specific question posed by the UN General Assembly in the narrowest possible manner, finding nothing in international law that addresses such declarations.
The political issues arising from the rival claims of Belgrade and Pristina to be sovereign over the territory of Kosovo -- plus the north's refusal to accept rule from Pristina -- remain unresolved. Though accepting the need for further discussions, the sides differ as to whether these should address Kosovo's status.
To avoid either a frozen conflict or renewed violence, the two parties -- perhaps led by their international supporters -- must secure a mutually acceptable agreement. Given the zero-sum nature of the dispute, however, only some innovation in how the two sides come to define their respective claims of sovereignty over Kosovo -- and autonomy for the north -- can end the current impasse and open the way to a durable solution.
Serbia is unlikely to recognize Kosovo anytime soon. It ought to be possible and acceptable, however, for Belgrade to acknowledge Pristina's existence, in practice, in the context of tangible progress on Serbia's EU membership. Following steps to settle the practical issues of the ethnic Serbian minority in Kosovo -- including implementing decentralization and a special status for the north -- they could both continue to claim Kosovo.
Belgrade would, however, agree to curtail its active campaign against Pristina's integration into the international community and leave it for others to recognize or not. A formula of formally disputed sovereignty over Kosovo, with an arrangement on practical matters affecting Kosovo's Serbs, would conserve the respective stances of each, uphold Kosovo's territorial integrity, and provide the foundations for further dialogue.
A regional precedent exists, however, for a more explicit and formal arrangement for sharing sovereignty over the north of Kosovo: namely, the special legal and political framework of Brcko district. Situated in the northeast corner of Bosnia-Herzegovina, Brcko is an autonomous administrative unit whose powers of governance are derived from the country's two entities -- the Republika Srpska and the federation. While Brcko belongs to both entities, it is independently self-governed -- under international supervision -- and its residents are citizens of either one of the respective entities.
In international law, the Brcko district is akin to a "condominium" -- "a political territory (state or border area) in or over which two or more sovereign powers formally agree to share equally dominium (in the sense of sovereignty) and exercise their rights jointly, without dividing it up into 'national' zones." Its unique status stems from a failure to reconcile competing claims to the territory during the Dayton peace negotiations -- a problem mirroring that of north Kosovo, where two opposing sides seek to control the same ground.
The basis for an autonomous entity in the north of Kosovo is provided for, in part, by former UN envoy Martti Ahtisaari's "Comprehensive Proposal for Kosovo Status" and the six-point plan of UN Secretary-General Ban Ki-moon. Together, they offer pragmatic measures relating to policing, customs arrangements, the judiciary and infrastructure, plus local autonomy in education and culture, and special features for Mitrovica (such as the university and hospital). The Ahtisaari plan, in particular, provides mechanisms for ensuring the transparency of Belgrade's support -- especially financial -- and linkages to Serbian municipalities in Kosovo.
Any agreement would have to include a role for the international community to help bridge between local Serbian institutions in the north and elements that would have to be shared or consistent across Kosovo, such as legal and property rights and the settling of civil disputes and other justice matters. These elements, however, could be discussed in negotiations quite apart from the political question of status.
South of the Ibar River, Kosovo's government has already begun implementing the decentralization and creation of new municipalities envisioned by the Ahtisaari plan. As part of any overall compromise, Serbia would have to agree to act according to that plan in its support of Kosovar Serbs living there.
Some practical details still have to be worked out. The International Community Office, responsible for overseeing implementation of the Ahtisaari plan, will also have to be more proactive in ensuring that the various elements are implemented according to the spirit of the plan, especially concerning the leading role of municipalities in the local courts, police, education, culture, and funding.
Pristina's role on the ground in the north would be, perhaps, the most difficult issue -- short of status itself -- to resolve. The northern Serbs are unlikely to agree to any direct involvement in decisions affecting them or the introduction of elements or symbols of the Kosovar government -- courts and customs, especially. Considerable space, however, exists for devising mechanisms for cross-river cooperation on water, electricity, waste management, and local infrastructure.
The Ahtisaari plan allows for a joint board to be formed with equal representation from north and south Mitrovica -- plus international involvement -- to work on issues of mutually agreed interest. Belgrade and Pristina will also have to cooperate on returns. Experience has demonstrated that interethnic peace cannot long be maintained in the face of unilateral or uncoordinated returns without the full involvement of the receiving communities.
Innovations in sovereignty and autonomy that have come to define Europe itself now provide the key to unblocking the Kosovo stalemate. Two such approaches -- practical modi operandi vis-a-vis the Serbian minority in Kosovo and the north without explicitly addressing status or a special condominium status for the north -- provide a strong basis for devising a mutually acceptable solution. Reaching such a compromise would help allay calls for partition or territory exchanges that would set a damaging precedent for Macedonia and Bosnia-Herzegovina. It would also place the ICJ decision within a context less likely to provide support for separatist claims elsewhere.
Gerard Gallucci previously served as the UN's regional representative in Mitrovica, Kosovo. Ian Bancroft is the co-founder and executive director of the NGO TransConflict.