James Ker-Lindsay is Eurobank EFG Senior Research Fellow on the Politics and International Relations of South East Europe at the European Institute, London School of Economics and Political Science. His main works include EU Accession and UN Peacemaking in Cyprus (Palgrave Macmillan, 2005), Kosovo: The Path to Contested Statehood in the Balkans (I.B. Tauris, 2009), and New Perspectives on Yugoslavia: Key Issues and Controversies (Routledge, 2010, co-edited with Dejan Djokic). He is currently working on a book examining how states attempt to prevent the recognition of secessionist territories, which is due to be published by Oxford University Press.


 Partition is somewhat of a dirty word in international affairs. India-Pakistan, Israel-Palestine and Ireland, to name just some prominent examples, conjure up images of forced displacement, families torn apart, and communities divided. It has therefore come to be seen as a rather unfashionable, if not wholly unacceptable, method by which to approach the resolution of ethnic conflicts. But should territorial division be always viewed in such a negative light? What if it is consensual and does not involve violence or population transfers? (Indeed, in the contemporary era any suggestion of forced migration would violate well established principles of human rights.) Should it be greeted with the opprobrium it currently generates? In many cases, it can represent an eminently logical and peaceful solution to a protracted conflict – a decision of two peoples with little in common and a long history of antagonism, but shoehorned into an uncomfortable and unwanted union, to live apart from one another. The forthcoming independence of South Sudan, following decades of civil war, is a case in point. Likewise, Kosovo is another example where a decision to draw a new boundary may well provide the best means by which to resolve an intractable dispute.


A fine Mess

When Kosovo declared independence in February 2008, it did so under the most controversial of circumstances. The UN sponsored status process overseen by the Special Envoy Martti Ahtisaari had been deeply flawed. He did not make the two sides engage in meaningful dialogue over a range of possible constitutional options, such as federalism, autonomy or confederalism,  that would keep the two areas together within a single state; instead, the UN envoy had  opted to pursue independence for Kosovo from the outset. To this end, he sought to formulate the structures of statehood, including the framework for strong minority rights for Kosovo’s various minority communities. As a result, the legitimacy of his mission was undermined in the eyes of Belgrade and its principal supporter, Moscow, which used its veto in the Security Council to block Ahtisaari’s proposal for supervised independence for Kosovo.


A further round of talks, this time held under the auspices of a trio of diplomats from Russia, the United States and the European Union, proved to be fairer in its approach. However, it too was doomed from the start. Although a wide range of possible options was explored, the Kosovo Albanians, armed with a cast iron promise of independence from the United States, and backed by Britain and France, had no reason to compromise.


Although the decision to support Kosovo’s unilateral declaration of independence required a decision to bypass the UN Security Council, the hope was that with the combined support of Washington and key European Union states the necessary impetus to win over wider international support would be generated. At first the plan seemed promising. Within weeks of having declared independence, Kosovo’s statehood had been recognized by most Western countries – with the notable exception of a few EU members. By the end of the year 53 states had acknowledged the new reality. Kosovo was also admitted to the World Bank and the International Monetary Fund.


However, initial optimism that Kosovo might be able to gain full international acceptance soon began to dissipate. In 2009, just eleven new recognitions were received. In 2010, a mere eight more states followed suit. As things stand, only 75 of the 192 members of the United Nations have chosen to accept Kosovo as a full member of the international community. Moreover, due to strong opposition from Russia and China, Kosovo’s efforts to pursue membership of the UN, as well as of other multilateral bodies and organisations, have amounted to little.


All this has had a profound effect. Citizens of Afghanistan and Haiti have more opportunities for visa free travel than the people of Kosovo. In sports, Kosovo cannot compete in the Olympics or in other sporting competition, including the soccer World Cup. It still does not have a telephone dialling code, relying on numbers provided by Slovenia and Monaco. Nor does it have its own internet country code. Meanwhile, the status issue also dampens foreign investment. Many businesses are wary of investing given the unclear legal situation.


There are several reasons why recognitions have stalled. In part, it is because of intensive lobbying by Serbia. Its rigorous foreign minister, Vuk Jeremic, launched a major campaign to prevent as many countries as possible from recognising Kosovo. His campaign tried to convey the message that Kosovo was not a unique case as many claimed; rather, the principles by which Kosovo had claimed independence could be applied to many other cases. If Kosovo could secede from Serbia, then the principle of the territorial integrity of states – a fundamental building block of modern international relations – would be undermined.


At the same time, the Serbian government secured a UN General Assembly resolution referring the legality of Kosovo’s unilateral declaration of independence to the ICJ, International Court of Justice the UN’s principal legal organ. In its non-binding opinion, issued in July 2010, the Court chose to sidestep the issue of Kosovo’s legality as a state or its right to secede. Instead, it pronounced on the general legality of a declaration of independence as a mere statement, arguing that this was not in fact contrary to international law. In effect, the Court appeared to treat the question as a freedom of speech issue, without becoming enmeshed in the deeper issues. Anyone can say they are independent; however, it is for others to decide whether they actually are.


Although initially hailed as a victory for Kosovo, the true implications of the ruling soon became clear. It changed very little. The new wave of recognitions, confidently predicted by Pristina and its allies, did not materialize. The five EU states that refused to accept Kosovo’s statehood remained steadfast in their opposition to independence. Russia and China also made it clear that they would not change their positions.


 


Serbia’s Surprising Ambivalence Towards Kosovo


Effectively, a stalemate now exists. Independence is irreversible. That much is clear. With the support of the United States and most of the European Union, Kosovo will never be a part of Serbia again. At the same time, however, Kosovo’s chances of becoming a full and equal member of the international community  being able to participate fully across a range of political, economic, sporting and cultural activities – appears extremely limited at best. It exists in limbo, which is an oddity in international affairs. To some it is a weak, flawed, but nevertheless sovereign state. To many others, it is a mere western protectorate borne of illegality.


A solution therefore needs to be found that will break the deadlock. Key to this is finding a way to persuade Serbia to relinquish its claim to a territory it can never effectively hope to control. With Belgrade’s objection gone, the way will be clear for full international recognition. After all, the Russian government has said that it will not be more ‘Serbian than the Serbs’ on the issue. One option that has been touted is faster EU accession. This is insufficient. For a start, European leaders are in no position to make this promise at the moment. Secondly, few in Serbia would want to be seen to be taking up such an apparently crass offer. While EU accession is still an aspiration for most Serbs, opinion polls have shown that most citizens would nevertheless place Kosovo about the EU.


However, such findings should be read with caution. Scratch beneath the surface and one realizes that the seeming intransigence of the Serbs masks a far greater pragmatism than is generally realized. The attachment to Kosovo is not as profound as many suspect. Instead, much of the problem lies in bruised honor. The one-sided manner in which Ahtisaari conducted his process, coupled with his suggestions that the Serbs were collectively guilty for what happened under Milosevic, served to unite many Serbs from across the political spectrum. It also explains why they are so reluctant to be bought off by promises of EU accession asaccepting a bribe on top of a humiliation only makes the sense of national shame stronger.)


To this extent, it is not so much the loss of Kosovo that grates, but the manner in which it was done. Indeed, many Serbs openly recognize that Serbia is in fact far better off without Kosovo. As Serbia is always the poorest region of Yugoslavia, many in Serbia are far happier to see it drain Western coffers than have to pay for it from their own tax dinars. Moreover, few want to see Kosovo Albanians given a role in central government, which would be expected under even the loosest of constitutional arrangements.


 


Partition by Any Other Name

The question, then, is how to provide a suitable face-saving solution that would see pride restored and Kosovo formally relinquished in a manner that would give it full independence. To many observers, the most obvious solution would be to trade northern Kosovo for recognition. Some call it partition. Others prefer the more euphemistic names, such as “territorial redistribution”, “territorial readjustment” or “boundary delimitation”. “Land for peace”,  or, more accurately, “land for recognition”, is another term that neatly captures the end result.


First of all, it is important to stress that the area in question is relatively small. When one thinks of partition, there is a tendency to imagine, incorrectly in almost all cases, of some sort of equal split between the two entities. This is rarely the case. It is certainly not how it would be in Kosovo. The territory under discussion represents approximately 15 percent of Kosovo’s total territory. This creates a nice symmetry as Kosovo itself represents 15 percent of Serbia’s territory. Thus some have called it the ‘15-15 solution’.


There are many arguments in favor of such an approach. For a start, the area that is under dispute was traditionally a part of central Serbia. It was only added onto Kosovo when the Yugoslav leader Josip Broz Tito defined the province’s modern boundaries following the World War II. Tito deliberately tried to alter the ethnic makeup of the region by appending a Serb area to a territory that has been overwhelmingly Albanian. Time has not changed the situation. Even today, northern Kosovo remains resolutely Serbian.


There are also pragmatic reasons to pursue a negotiated split between Serbia and Kosovo along new boundaries. The Serbs living in the southern Kosovo, which is 85 percent of Kosovo that is now under the full authority of Pristina, are starting to come to terms with the reality of an independent Kosovo and even participate in the government. However, those in the north remain steadfastly opposed to any cooperation with the central authorities. Kosovo’s institutions simply do not function in the north, and repeated attempts to try to impose control have been thwarted. Rather, the area remains resolutely Serbian. Trying to enforce Pristina’s control over the area will simply not work, but would rather provoke further conflict.


Even if control could be exerted, it would be a constant struggle of wills. The Kosovo Albanians first declared independence in 1991 and spent much of the rest of the decade living under their own parallel institutions, until the UN established its administration there in 1999. Just as the Kosovo Albanians always refused to accept Serbian rule and resisted in whatever way they could ), so the Serbs in the north of Kosovo will do likewise. If the logical answer were to allow Kosovo to break free from Serbia due to irreconcilable differences,   it is certainly better to apply the same thinking to the north and its “parallel institutions”. Brought in as a demographic counterbalance, northern Kosovo is now acting as ethnic deadweight on the rest of the country.


 


But Is It a Realistic Solution?

While it may be a logical solution, whether it is an acceptable solution is still a question. Past experience suggests that it is not. When it was raised by the U.S./E.U/Russia negotiating Troika during their unsuccessful discussions on Kosovo’s future status in 2007, Belgrade rejected the split. Since then, the tide of thinking has turned. The decision of key states to recognize Kosovo has injected a dose of realism into Serbian calculations. A recent trip to Belgrade highlighted the degree to which there is a willingness amongst policy makers in Serbia to pursue an exit strategy along these lines.


In contrast, few in Kosovo are ready to concede that relinquishing the north might be a price worth paying. Indeed, many politicians in Pristina actually blame the poor situation in the country on the failure to bring the north under control. This makes little sense. Forcibly integrating the north will only antagonize Serbia further and entrench Russian and Chinese positions. It will make recognition harder, not easier. Alternatively, by simply giving up a claim to a sliver of territory that has never been within its grasp, Pristina would be able to obtain full international acceptance. To be certain, many Kosovo Albanians loathe the thought of losing the north, in rather the same way that many Serbs are unhappy at the loss of Kosovo. However, the long-term benefits for both Kosovo and Serbia through such an honourable and historic compromise would be tremendous.


The trouble in this mutual compromise is that Pristina’s reluctance to pursue this option is being supported, if not encouraged, by those countries that have most strongly supported its independence. Time and time again, the United States, Britain, France and Germany have insisted that Kosovo’s status is resolved and there can be no further discussions on either independence or its boundaries. This is all very well, but such actions ignore the increasingly obvious fact that Kosovo is far from gaining the full international legitimacy, let alone legality, that it needs in order to function as a viable state. Such support therefore harms instead of helping Kosovo.


One of the several reasons for this strong opposition to any territorial adjustment is that it would set a dangerous precedent. Such an argument neglects the fact that, by allowing Kosovo to become independent, they have in fact overseen the partition of Serbia. In this context, a far more destructive precedent has been set by forcibly dividing a sovereign state than by allowing Serbia to negotiate the terms by which it would allow Kosovo to go its own way. Nothing in international law says that a state cannot redraw its boundaries, or allow part of its territory to become independent. Thus a “land for recognition” solution would in fact be far more in line with international norms than the current situation.


The second reason is that there are fears about the implications of all of this on regional security. The current thinking is that if Kosovo can be divided, why not neighboring Bosnia or the Former Yugoslav Republic of Macedonia? The immediate response to this is that, if this is such a concern why was there so little effort made to try to promote reconciliation between Serbia and Kosovo? Instead of allowing Kosovo to gain independence, more should have been done to find a new constitutional settlement that would allow them to remain together, which is the traditional approach to conflict management. It is not allowing the boundaries of Kosovo to be redrawn that amounts to the dangerous precedent, it allowing it to gain statehood in the first place that has upset the consensus in international politics.


Yet even this problem is surmountable. In fact, allowing Serbia and Kosovo to reach an agreed solution would restore the traditional sanctity of the principle of consent in processes of secession. If Serbia chooses to let Kosovo go its own way, thereby agreeing to a new boundary in the process, that is the sovereign prerogative of the Serbian government. Whether any other states choose to follow suit is entirely their business. In this sense, a negotiated split would in fact be a far greater source of international stability than the current situation, which is a product of hitherto unacceptable unilateralism.


 


A ‘Dialogue’ Is Not enough


Despite the current impasse, the Kosovo situation is not one of complete doom and gloom. An EU-sponsored ‘dialogue’ between Belgrade and Pristina has recently started. This should hopefully find some ways of easing day-to-day life for Kosovo’s inhabitants. However, it is also clear that the independence issue will be a constant obstacle in the process. Questions of status and recognition will touch on almost every aspect of every topic under discussion.


At some point, therefore, the question of Kosovo’s independence will need to be tackled and a comprehensive, sustainable and fair settlement found. A territorial adjustment would appear to be the only way to deliver such a far-reaching and long-term solution. Certainly, many will view it as an extremely unpalatable idea. But, as Sudan has shown, sometimes a properly negotiated divorce can be the best answer. It would allow Serbia to walk away with a modicum of honour restored having won back a slice of territory that it originally lost to the gerrymandering of Yugoslavia’s communist leadership. Meanwhile, Kosovo can divest itself of a territory that will always be unruly and, in doing so, open the way to full international recognition. At the same time, the vital principle of consent in cases of secession can be restored, thereby limiting the danger posed by separatist conflicts elsewhere.


The opportunity still exists to resolve the mess created by Kosovo’s unilateral declaration of independence. It should not be missed because of the dogmatic view in some quarters that a negotiated partition, while perhaps undesirable, is also wholly unacceptable.