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Failure To Negotiate Leads To Unilateral Acts

In international politics, when the position of the sides are different and they are unable to find the solution, the conditions for successful negotiations are: (1) shared interest in reaching an agreement; (2) a mutual understanding of the parties’ resistance points; (3) a settlement range of overlapping interests; (4) the perception of shared benefits; and, (5) skilled negotiators. [1] The negotiation process between Serbia and Kosovo showed that none of the conditions for successful mediation fully existed, leading to Kosovo’s unilateral decision to declare independence. The UN Security Council was not able to pass the resolution regarding the independence of Kosovo. Consequently, the situation moved to the International Court of Justice, which should award an advisory opinion in response to the request of UN General Assembly. The Court should answer whether the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo was in accordance with international law or not.

The purpose of this article is to discuss international engagement in the negotiation process between Serbia and Kosovo from the beginning of the conflict until the unilateral declaration. Four main stages of the negotiation should be noted: 1. The negotiation between Serbia and Kosovo in the frames of the International Conference on Former Yugoslavia; 2. Hill negotiation process and Rambouillet Conference; 3. Ahtisaari negotiations; 4. The Troika negotiations.

The territory of Kosovo has for centuries been the home of a largely ethnic-Albanian Muslim community. Since 1912, Kosovo became the autonomous province of Serbia, which integrated in Yugoslavia in 1918. Following the breakup of Yugoslavia separatist movements became active in Kosovo with the ultimate goal of achieving the independence. Serbia resisted such movements and claimed the territorial integrity of the country.

1. The London Conference in August 1992 initiated the International Conference on Former Yugoslavia and the international society attempted to find a solution for the crisis in the region. However the disagreement between Serbia and Kosovo was not the central issue in the discussion as the focus of international community was on the armed conflicts in Bosnia and Herzegovina and Croatia, not on Kosovo. Representatives of Kosovo Albanians were not even invited to attend the London Conference. They presented a memorandum to the Conference and declared that they were not interested in any kind of autonomy or self-government within Serbia. Six working groups were established at the conference, including a Special Group that addressed ethnic and national communities and minorities, which discussed the Kosovo issue. [2] The work of the Special Group on Kosovo started in September 1992, in Geneva, and subsequent talks took place in Pristina and Belgrade. Because of the differences between the parties, at first the Special Group tried to focus on areas where progress could be achieved, such as education and health care. However negotiations soon went to the stalemate as Kosovo Albanians did not consider themselves as national minorities and required full independence.

2. The Hill negotiation process (named after United States envoy Mr. Christopher Hill) was initiated as mediated negotiations, which took place at the Bonn meeting of the Contact Group, held on 8 July 1998. The Contact Group was the principal international body involved in negotiations and it consisted of 6 states: France, Germany, Italy, Russian Federation, United Kingdom, the United States. Mr. Hill conducted shuttle diplomacy between Serbia and Kosovo representatives and achieved an outline agreement, which envisaged a three year stabilization and normalization period to allow the re-establishment of democratic institutions. [3]

The constant fights between belligerent parties caused the further deterioration of the situation, however the Hill negotiation process moved further along. The proposal was suggested that Kosovo would have the highest possible level of self-governance but not independence. However the representatives of Kosovo did not agree with the proposal as they considered that the question of independence was non-negotiable. Regardless of these statement, the Hill team continued working. These diplomatic efforts led to the Rambouillet Conference in February/March 1999, co-chaired by the British and French foreign ministers. The negotiation culminated in the “Interim Agreement for Peace and Self-Government in Kosovo”, which was endorsed by contact group foreign ministers. Serbia had fundamental disagreements over the presence of NATO forces throughout the territory of Federal Republic of Yugoslavia (FRY) and they rejected that the final status should be settled by the referendum in Kosovo, as they considered that taking into account the ethnic composition of the province. It was clear that such referendum would lead to only one result, namely the secession of Kosovo from the FRY and Serbia. These were the major reasons for Serbia to refuse to sign the interim agreement. The Kosovo Albanians signed it on 18 March 1999. Between March 24 and June 10, 1999, NATO intervened by bombing Serbia aimed to force the government to withdraw the military forces from Kosovo. This military action was not authorized by the Security Council of the United Nations and its legality has been the major disagreement between the international law scholars. Ultimately by June Serbia had agreed to a foreign military presence and UN administration within Kosovo and withdrawal of the troops.

3. The Ahtisaari negotiations were the most important and thorough phase in the mediation process. After 6 years from the end of harsh hostilities, in 2005, the international community decided that stabilization was achieved and it was the right time to decide the final status of Kosovo. Martti Ahisaari, former president of Finland, was appointed by the Secretary-General as his Special Envoy to lead the process. The final status talks were preceded by the pre-negotiation phase, where the basic negotiation principles were defined. The members of the “contact group” for Kosovo agreed on the following principles: the settlement should serve regional security and stability, no partition of Kosovo and no unification of Kosovo with any other country. Serbia attempted to keep independence off the negotiation table and not to discuss it, but the US emphasized that the independence of Kosovo could become one of the possible options. The position of the US was accepted by the group.

Ahtisaari’s “fact-finding” trip to the region was followed by fifteen rounds of negotiations held in Vienna, starting with less problematic issues, such as decentralization and the protection of cultural heritage, then moving to more contentious matters, such as economic issues and the issue of the final status of Kosovo. However the position of the parties remained far apart, Belgrade would agree to almost everything but independence, whereas Pristina would accept nothing but full independence.

In the negotiation process the position and the interests of the world powers had huge influence. Russia declared a position more supportive of Serbia, while UK and US openly stated that independence of Kosovo would be a better and more realistic option. They even began to offer the incentives to Serbia in exchange for Kosovo independence, such as involvement with the EU and NATO.

In the beginning of 2007 Ahtisaari presented his Comprehensive Proposal to the UN Secretary General: Kosovo’s status should be independence, supervised by the international community. Serbia never recognised this proposal, while Kosovo accepted it. The Security Council couldn’t adopt the proposal as Russian Federation strongly opposed it.

4. In August 2007, the EU, the US and Russia operating as a Troika mediated a final 120-day series of talks between Serbia and Kosovo. The Secretary-General welcomed this initiative on 1 August 2007, restating his belief that the status quo was unsustainable and requesting a report on these efforts by 10 December 2007. The Troika undertook an intense schedule of meetings with the parties, who were represented at the highest level. However the parties were unable to reach an agreement on the final status of Kosovo. Neither party was willing to cede its position on the fundamental question of sovereignty over Kosovo. All efforts to achieve an agreed settlement had been exhausted and the U.S. repeatedly emphasized its willingness to recognize a unilateral declaration of independence. [4]The EU apparently began private offerings of a Stabilization and Association Agreement to Belgrade in exchange for Kosovo independence. [5]

Kosovo unilaterally declared its independence from Serbia on February 17, 2008. The U.S. recognized Kosovo as an independent country on February 18, 2008, quickly followed by many major European powers including France, Germany and the United Kingdom. Today Kosovo is recognized by 58 UN member states.

There were a lot of reasons, which caused the failure of negotiations and the sides were not able to overcome it. They did not seek to stress on shared and overlapping interests and did not wish to take a step back for the sake of negotiations. In such circumstances, it’s nearly impossible to reach an agreement.

Although the international community was actively involved with skilled negotiators in the mediation process and they did their best for the agreement between the sides, the position of major powers sometimes had a negative influence. While the Russian Federation obviously supported the territorial integrity of Serbia, the United States and European Union backed the independence of Kosovo. These powers considered the problem based on their own national security interests and such position made the situation even more complicated.

Today the international community is waiting for the advisory opinion of the International Court of justice, whether the Unilateral Declaration of Independence breached international law or not. However, taking into account that the decision of the Court will have advisory, non-obligatory character, I think, it will not lead to the agreement. The both sides should continue negotiation process and the international society should play more positive role in it. This is the only way that can lead to the final resolution of the conflict.

End Notes

1 Lauren, Craig and George, Force and Statecraft: Diplomatic Challenges of our Time, (2007), pg. 154-57.

2 Working Program of the Conference, 26 August 1992, reprinted in B. G. Ramcharen, The international Conference on Former Yugoslavia (1997), pp. 34-37.

3 UN Doc. S/1998/912 (3 October 1998), par. 4.

4 Judy Dempsey, Kosovo: Recognition Likely from US, THE NEW YORK TIMES, A14, Sept. 25, 2007.

5 “Political Agreement Offered to Belgrade by EU Divides Political Scene in Serbia,” BBC Monitoring Europe – Political, Feb. 6, 2008.


Giorgi Narmania

Giorgi Narmania is a student at Tbilisi State University, Georgia, where he is majoring in international law. He is a participant of the Global  Undergraduate Exchange Program (UGRAD) funded by the US Department of State and spends this academic year at University of North Dakota. Giorgi is intern at UND… MORE >

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