What next for Kosovo?

The "Quint" has been vocal in recent months in attacking Serbia's approach towards Kosovo.  Serbia's argument against the independence of Kosovo has centred around international law and UNSC Resolution 1244.  It claims that unilaterally declared independence violates the UN Charter and the Helsinki Final Act, according to which a new state cannot be formed on the territory of an existing state without the agreement of that state.  As Serbia did not agree to independence, it has deemed the declaration to be illegal.  It would seem that the Quint is running out of patience with Serbia, as it recently released a statement to its Foreign Ministry saying, "We have tolerated until now the Serbian aggressive rhetoric regarding Kosovo, because we believed that with time passing it could be taken off the agenda."

The interpretation of this is interesting.  On the face of it, it may seem that the Quint countries consider it time to move on for both Kosovo and Serbia, and that repetition of the same argument by Serbia is preventing progress.  Kosovo, now independent, needs to strengthen its economy, become stable and peaceful and tackle organised crime.  It can only really deal with these problems by having a defined status, even if that status has been achieved through a unilateral declaration.  Serbia has aspirations to join the European Union, and must work towards satisfying various criteria in order to make this a reality.  It has been hinted previously that Serbia must accept that Kosovo is now independent if it is move forward in this direction.  Although this makes sense, it is probable that the Quint's objections to Serbia's "rhetoric" run deeper.

In December 2009, the International Court of Justice heard evidence from Serbia and other interested parties relating to the legality of Kosovo's independence.  The hearings were held at Serbia's request and a decision is expected later this year.  It is hoped by Serbia that the Court will rule in its favour and there can then be a return to negotiations.  Serbia's success in bringing this legal challenge is perceived as a threat to independence.  Whilst it is unlikely that independence would ever be revoked on this basis, an outcome in favour of Serbia's position would nevertheless weaken the case.  The Quint, being fearful of this, has consequently asked Serbia to tone its legal argument down.

The Quint has admitted what many of those recognising independence have privately been hoping - that by tolerating this argument, the Serbs would soon realise that nothing will bring Kosovo back, and that instead it would be better to concentrate on gaining entry to the European Union - thus the issue of Kosovo would fall from the political agenda leaving the West free to implement the Ahtisaari plan unimpeded.

Then there is the issue of UNSCR 1244, which is being used by both sides to defend their position.  A recent remark by an international official in Kosovo referred to the Serb parallel structures in the north of Kosovo as being in violation of UNSCR 1244.  The official stated that the Resolution does not allow for parallel structures and that any form of violation causes instability.  One can see the logic in this and cannot disagree with the fact that violations could indeed result in instability.  However, the statement is somewhat contradictory because it is obviously acceptable for Kosovo to unilaterally declare itself independent in violation of the resolution, but not acceptable for Serbs to establish parallel structures in the north of Kosovo (where they are a majority) also in violation of the resolution.  Either both sides should be allowed to violate the Resolution in circumstances they consider necessary - in which case it ought to be declared void - or neither side should do it.  Consistency is of the essence here.  Selective application does not work because if one side violates the Resolution, the other will see it as permissible to do so too.

To what extent have both sides actually violated UNSCR 1244?  Whilst there is nothing in the Resolution to support the establishment of parallel Serb structures, there is nothing to specifically prevent it either.  However, because Kosovo is now independent, the parallel structures are seen to undermine its status, thus amounting to a breach of the Resolution, as it was no doubt intended that whatever status Kosovo eventually assumed, it would be respected.  Crucially, as the Resolution does not say what Kosovo's status should be, there is nothing to prevent Kosovo becoming independent, and independence in itself is not a violation of the Resolution.  However, it is the fact that the independence was unilaterally declared without the agreement of Serbia, which is considered to be a breach of the Resolution.  The creation of Serb parallel structures cannot be considered a violation if the status is illegitimate in the first place.  If both sides had agreed to the independence, the Resolution would have been respected and Serb parallel structures would never have appeared.

This highlights the importance of obtaining a negotiated settlement, which although difficult to achieve, would not be impossible.  Ultimately, the issue is not about whether Kosovo should become independent, but about what can be achieved by both sides.  In other words, obtaining an agreement.  With the right opportunities, unlimited time and freedom from external interference, it would be interesting to see exactly what could be achieved.  Perhaps ironically both would agree to independence, or perhaps something entirely different that no-one has envisaged so far.

Frances Maria Peacock is a British analyst.