There is another way

Reiterations of the inevitability of, and lack of alternatives to, independence for Kosovo have constrained discussion over the nature of other possible solutions; despite Michèle Montas, the spokeswoman for UN secretary general, Ban Ki-moon, stating that "Ban still believes that a compromise reached through negotiations between the two parties would be the best solution." In attempting to resolve the issue of Kosovo's status, Serbia has outlined several models of "essential autonomy" for Kosovo, based on the examples of Hong Kong, South Tyrol and the Åland Islands. However, it is the legal and political framework of Brcko District in Bosnia and Herzegovina that could provide the foundation for an alternative solution to Kosovo's status; one that simultaneously reinforces the European perspective in the western Balkans and conforms to the principles of international law, in particular, UN security council resolution 1244.

Though analogies often prove insufficient when applied to different post-conflict situations, they do provide important clues as to the types of institutional frameworks and innovations that can be employed in order to achieve peace and stability.

Notwithstanding its failure to gain UN security council authorisation, the EU has continued to press ahead with its plans to send a mission to Kosovo. Indeed, Serbia's response to Ban Ki-moon's report on Kosovo stresses: "Many processes in the province [of Kosovo], including the transfer of Unmik powers to temporary institutions, as well as the preparations to send an EU mission are being carried out according to the Ahtisaari plan as if the plan had been considered and adopted in the security council."

According to Montas, Ban Ki-moon "also believes that resolving the Kosovo status outside the UN framework would have serious consequences for the world order" and therefore he supports a resumption of negotiations between Belgrade and Pristina. Given the growing clamour for further talks over Kosovo, there is an urgent need to consider alternatives to independence.

One illuminating comparison is the special legal and political framework of Brcko District, situated in the northeast corner of Bosnia and Herzegovina. After failing to reconcile the Brcko issue during the Dayton peace negotiations, all parties agreed to binding arbitration of the disputed portion of the inter-entity boundary line (IEBL).

The eventual Final Award in 1999 established Brcko as an autonomous district, whose powers of governance were derived from Bosnia and Herzegovina's two entities - the Republika Srpska and the Federation of Bosnia and Herzegovina. Thus, while Brcko District is jointly owned by both entities, it is independently self-governed and its residents are either citizens of the Republika Srpska or the Federation. Though it lacks the powers of the entities, Brcko District - with its own assembly, administration, police and judiciary - retains significant control over its own economy, public services, education, health care, policing and other important aspects of daily life.

Brcko District has been hailed as an institutional innovation that successfully contends with a contentious and strategically important territory. Now the most economically prosperous part of Bosnia and Herzegovina, Brcko has become something of beacon in terms of political and economic reforms. As Raffi Gregorian, Brcko's supervisor and deputy high representative, affirms, "The district is a successful administrative unit, people like living there and the local authorities like the existing arrangement."

Embracing the example of Brcko as the basis for an alternative solution to the issue of Kosovo's status would reinforce the EU's commitment to institutionalised, integrative approaches to conflict resolution.

In international law, Brcko District is akin to a "condominium", which is "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."

As such, for any Brcko-based solution to be applicable to Kosovo, the EU must be prepared to play a decisive role in Kosovo's future. Though not a state, the EU is a subject of international law and could therefore assume a share of sovereignty over Kosovo. For instance, Serbia and the EU would be jointly responsible for guaranteeing, among other things, Kosovo's defence, border management, minority rights, the return of displaced persons and the protection of sites of cultural and religious heritage; working together through institutionalised means of cooperation to implement policies and provide oversight for the mutual benefit of all.

Kosovo would attain complete self-governance, including executive, judicial and legislative powers, control over its economy and public finances, direct access to certain international and regional organisations, including international financial institutions, the right to use its own symbols and the ability to open foreign trade and cultural missions abroad.

To complement this arrangement, the EU could grant Kosovo a special status - one that provides Kosovo with privileged access to EU structural funds, special institutional links with EU institutions and permanent representation in Brussels.

The example of Brcko District provides a graphic illustration of the innovations in sovereignty and autonomy that could serve as the basis for an alternative to independence for Kosovo. A systematic relationship between Serbia and the EU, with both sharing sovereignty over Kosovo, provides a novel and viable approach to resolving the status issue. It is not a question of transplanting one model to the Kosovo context, but of using these lessons to develop unique answers to the Kosovo problem. As such, an imaginative Brcko-based solution offers the best platform for resolving Kosovo's status in line with UN security council resolution 1244, while further reinforcing the EU's integration strategy for the Western Balkans. Such an outcome would strengthen the EU's common foreign and security policy, particularly its conflict resolution and management capabilities, by demonstrating a commitment to constructive dialogue and negotiated compromise.

http://commentisfree.guardian.co.uk/ian_bancroft/2008/01/there_is_another_way.html

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