According to international law and the applicable constitutions,1 Kosovo is still a province of the Republic of Serbia, whose government insists it will rule again when the UN leaves. However, the ethnic Albanians, who make up more than 90 per cent of Kosovo’s inhabitants, insist Kosovo will be independent of Serbia.
This dilemma will be at the center of talks scheduled to begin later this year on Kosovo’s political status. But the diametrically opposed positions of Belgrade and Pristina will not be the only complication to be tackled. Extremists with separatist agendas in Bosnia-Herzegovina, Macedonia, and Serbia proper will follow the talks closely, hopeful for any hint of partition in Kosovo—a precedent that would potentially unravel peace settlements in their own areas and open the prospect of border change.
Regional peace will depend on the success of the negotiations and the stakeholders’ capacity to accept the outcomes.
Determination of Kosovo ’s status has been put off so long because of the difficulty of reconciling the several layers of variables at play. Serbs and Albanians on the ground cohabitate in an uneasy state of ceasefire that is decades away from meaningful reconciliation. The competing capitals of Belgrade and Pristina heartily contest each other’s historic right to govern Kosovo, but they can barely be brought to discuss “technical issues,” such as license plates or common telephone networks.
The international community is equally divided over Kosovo’s fate. If the local stakeholders cannot be guided, against great odds, to an agreement, Russia and China will probably block any attempt by the UN Security Council to impose a solution that would potentially threaten their own claims of sovereignty in Chechnya and Taiwan, respectively. But the status quo will not hold, and Kosovo’s myriad political, social and economic problems will not sort themselves out. The massive civil unrest of March 2004 that left 19 dead and over 4,000 newly homeless across Kosovo challenged the international community’s assumption that the province could be left on a low simmer while its institutions matured and its inhabitants reconciled.
Without a political horizon, the province will remain highly unstable, and the international community is probably justified in committing to a status process this year.
This year’s talks are likely to extend two strands of discourse that have dominated the discussion of Kosovo’s future since 1999. One is the legal force of sovereign states’ rights, according to which Serbia enjoys a strong presumptive claim to keep Kosovo. The international system is built on the assumptions that state borders are generally inviolable and that sovereign governments exercise wide prerogatives within them.
Weak states undermine international security. The other main strand of Kosovo discourse explores the security consequences of implementing particular status scenarios. The bulk of the recent policy literature contemplates a range of status scenarios and draws geo-political morals from the possible outcomes.2 Dominoes tend to be the key metaphor.
As incisive as these studies tend to be, both the legal and the security-centric approaches are doomed to generate much discussion but to accomplish little because they depart from the middle, rather than the beginning, of the Kosovo question. In order to sort through the stakeholders’ conflicting claims to statehood in Kosovo, the theoretical foundations of statehood itself ought first to be made clear. Once the general characteristics of a viable polity have been laid out, the stakeholders’ particular visions of statehood can be measured against them.
There is a strong theoretical case to be made that a state’s rights are contingent on the state’s fulfilling its constitutive obligations. Simply put, there are no state’s rights if the sovereign power has withdrawn its commitment to the very obligations that underwrite the state’s existence. Any evaluation of Serbia’s legal argument for retaining Kosovo must begin with an assessment of its commitment to the state’s constitutive obligations throughout the whole of its territory, including Kosovo.
There is a strong empirical case to be made that Serbia has alienated its right to rule Kosovo through willful, protracted abuse of such obligations. It is also evident that post-Milošević Serbia cannot or will not take the necessary steps to cultivate trust among its Albanian citizens in Kosovo, undermining the possibility of
Belgrade’s renewed governance there. The purpose of this paper is to present prima facie arguments for each of these theses.