Endless EU Facilitated-Mediated Dialogue Between Kosovo and Serbia.

• Author: Rrahmani, Bashkim

Introduction

Kosovo's Declaration of Independence was a political act and it was expected to be the final step for normalizing relations between Kosovo and Serbia. The normalization of relations, however, did not happen and the expected normalization was not established smoothly or quickly. The roots of the disputes between Kosovo and Serbia are not only based on the dissolution of Yugoslavia. From 1913 to 1918, Kosovo was a province of Serbia. Then, from 1918 to 1929 it was a part of the Kingdom of Serbs, Croats, and Slovenes. In 1929 it became part of the Kingdom of Yugoslavia until 1944. From 1945-1946 until the dissolution of Yugoslavia, it mostly maintained a dual status: It was a constitutive element of the federation and a part of the constitutional system of Serbia. Its position within the Yugoslav federation was very similar to other federal units. However, a little over a hundred years ago, major European powers unjustly decided to put Kosovo in a situation in which it did not belong. (1) That decision made by Europe's major powers of the time "has been largely responsible for the historical injustices and sufferings of the Kosovo Albanians for the past hundred years and perhaps for the Balkanization of the entire region." (2) The mentioned state no longer exists, whereas the last one, the Federal Republic of Socialist Yugoslavia, dissolved through a process that took hundreds of thousands of lives, included genocide and crimes against humanity, and saw atrocities that had not been seen in Europe since World War II. The federation was dissolved mostly as a result of two tendencies: first, it strived for dominance and hegemony over the others, represented by Serbia as one of the units of the federation, and second, the tendency for more decentralization, more democracy, and more freedom represented by other federal units and other nations.

Kosovo was on the side of democracy and freedom and this came at a very big cost. From the former federation of Yugoslavia, Slovenia, Croatia, Bosnia and Herzegovina, Montenegro, Macedonia (North Macedonia), and Kosovo became independent states. Almost all these states formed after facing challenges and difficulties, including wars, aggression, threats, and other types of force by Serbia and its regime. Unfortunately, the current Serbian regime stokes tensions in the region. This can especially be seen in its behavior toward Bosnia and Herzegovina via the Republic of Srpska, as well as in Montenegro through the position of the Orthodox Church (among other actors), and in Kosovo by refusing to recognize the state of Kosovo and manipulating the Serb minority. On one hand, throughout the entire process of the dissolution of former Yugoslavia, European support (before the European Community) was vivid and important. On the other hand, the U.S. has taken concrete actions, which produced more concrete outcomes. The EU commitment has a history of some success in the Balkans (Slovenia and Croatia are members of the EU), but it is still far from achieving uniform success in the region, particularly regarding a solution for the Kosovo-Serbia dispute. However, "the EU turned the accession process into the core of its policy toward the Western Balkans, including Kosovo and Serbia. In June 2003 member states stressed their 'privileged relationship' with the region." (3)

Methodology

For this paper, the combined methodology was used with the following methods: The method of systemic analysis, which is used for analysis of a variety of legal and historic resources (jurisdiction, institutional politics, statutes, conventions, publications and other research studies) and to draw conclusions as well as to generalize and summarize them; the method of logical analysis is used to draw conclusions based on the rules of logic, i.e. interpretation of legal acts based on articles and interpretation of judgments provided by the Constitutional Court; the method of teleological analysis, which is used to interpret legal norms and resources for the implementation of goals deriving from the constitution and other legal resources; the method of comparative analysis, which is used to compare attitudes of authors, opinions and attitudes of states and the practical examples, sometimes via historical comparison; and lastly the method of theory analysis, which is used for interpretation of legal resources, i.e. to explain the content of reviews, international law, constitutions, etc.

Research and Discussion

The Process of Facilitation or/and Mediation between the Kosovo-Serbia Dispute

Between good offices and conciliation lies the third-party activity known as 'mediation.' (4) Like good offices, mediation is essentially an adjunct to negotiation, but with the mediator as an active participant, authorized, and indeed expected, to advance fresh proposals and to interpret, as well as to transmit, each party's proposal to the other. (5) The third party who acts as a 'facilitator' or 'provider of good services' has a more limited role compared to a 'mediator' and doesn't do more than help parties in the dispute establish direct communication. (6) Usually, the role of a facilitator changes and transforms into a mediator. Of course, international disputes in diplomatic practice and theory are known to be solved through the process of inquiry, conciliation, arbitration, and the International Court of Justice. This is best seen from the United Nations General Assembly Resolution of 1970, after quoting Article 2 (3), which proclaimed: "States shall accordingly seek early and just settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice." (7) There is a deep-rooted dispute between Kosovo and Serbia that has a complicated history. These complications, unfortunately, have led to serious consequences and have costed innocent people their lives. The dispute has existed for years, but it was not treated as an international dispute until the last three decades. The preceding phases of developments regarding Kosovo-Serbia relations could be the subject of different academic discussions outside of the processes of mediation and/or facilitation developed after Kosovo proclaimed independence. Serbia and its officials have not shown any willingness to recognize Kosovo as an independent state; yet, they have entered into a long-lasting process of talks and negotiations with Kosovo, which were facilitated or/and mediated by the EU in various forms. In the end, they agreed to accept mediation as a process, and "by accepting mediation, a government acknowledges that its dispute is a legitimate matter of international concern." (8)

EU Mediation through Good Offices or Mediators

Before evaluating the EU facilitated/negotiated process, it is very important to highlight that "EU institutions hold a neutral attitude regarding the Kosovo status. This shows the different approach that the EU has compared to the other states, created in the process of integration. No state from former Yugoslavia is displayed with the Asterix (*) or whose name is put in the footnote. No state from the territories of former Yugoslavia was conditioned by the demarcation of its borders with its neighbors. No other states from the territories of former Yugoslavia remains not being recognized by EU." (9) On the other hand, since its declaration of independence, one of the main Kosovo foreign policy objectives was EU integration. In the same way, "most of its citizens, or up to 93 percent of them, support the process of Kosovo integration into the EU" (10) Yet, five states (11) from the EU do not recognize Kosovo as an independent state. Interestingly, the current EU Special Representative for the Belgrade-Pristina dialogue and Western Balkans is from the Republic of Slovakia, a state that doesn't recognize the state of Kosovo. Kosovo's process of independence in addition to the pre-war efforts was:

Accompanied by a number of painful concessions for Kosovo, including a period of internationally supervised independence; the creation of several new Serb-majority municipalities carved out of existing Albanian-majority ones; extra powers for those Serb areas, notably over education; protections for Serbian Orthodox Church sites; parliamentary seats set aside for Serbs and other "non-majority" peoples, with a veto over legislation of vital interest; permission for Serbia to extend financial and technical help to Serb-majority municipalities; and a security force limited to 2,500 lightly armed soldiers. (12) Beyond this, however, efforts launched in March 2011 constituted the first test of Pristinas and Belgrade's willingness to solve problems together. The first meeting between Kosovo and Serbia was held on March 9, 2011, in Brussels. The delegation of the Republic of Kosovo was led by Edita Tahiri, Deputy Prime Minister and Minister for Dialogue in the government of the Republic of Kosovo, while the Serbian government was led by Borko Stefanovic, in the capacity of Serbia's Special Representative to the dialogue. (13)

In this context, from March 2011 to April 2013, then High Representative for Foreign Affairs and Security Policy (HR) Catherine Ashton and her team brokered several rounds of talks between Serbia and Kosovo. Ashton's approach was based on tying the prospects for EU membership of both entities to the normalization of their bilateral relations. The negotiation was far from a smooth process. As the EU was preoccupied with other, more pressing issues (ranging from the eurozone crisis to the refugee emergency of 2015), Russia saw an opportunity and strengthened its ties with Belgrade. (14)

The EU-mediated dialogue, which is quite often referred to as the Brussels dialogue between Pristina and Belgrade, officially started at the beginning of 2011, UN Assembly Resolution No. 64/298...