Perspectives | Democracy

The fallacies of ‘border adjustment’ between Kosovo and Serbia

By - 03.09.2018

Private dealings behind closed doors are a recipe for future conflict.

A century ago, U.S. President Woodrow Wilson decried the practice of secret agreements between political leaders as a cause of conflict and war. In view of the horrors of World War I, and with a view to establishing a world order based on international cooperation, justice and law, he demanded in his famous ‘Fourteen Points’ of 8 January, 1918 “open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view.”

Today, secret agreements threaten Kosovo whose very existence as a state is the result of an international engagement that was driven by Wilsonian ideals of human rights and humanitarian intervention, multilateralism and democratic self-government.

Kosovo’s President Thaçi and Serbia’s President Vučić are talking about an agreement on ‘border adjustment’ which is nothing more than a euphemism for exchange of territory and partition. While both presidents openly talk about ‘border adjustment’ between Kosovo and Serbia, they do not disclose what they mean by that.

Where will borders be adjusted? Which territories will belong to Serbia and which will belong to Kosovo? The public in Kosovo and Serbia is lost in wild speculations about the meaning of such ‘border adjustment’ leading even to phantasies of population exchange, as now promoted by some extremists.

Apart from the secrecy surrounding these talks and the lack of clarity about what ‘border adjustment’ means, there is a logical fallacy in the thinking of both presidents. If Kosovo and Serbia are to adjust their borders, what will be the baseline from which to measure the adjustment?

Kosovo cannot accept any other baseline as it would otherwise violate the very political and legal foundation of its existence as a state.

Borders can only be adjusted if there is already a borderline recognized by both sides. It is interesting to observe the various international reactions to the proposal for ‘border adjustment.’ Germany and the United Kingdom oppose any change of borders, while the United States and even the EU have indicated their willingness to accept any agreement that Kosovo and Serbia might reach, even one including ‘border adjustment.’ None of them are asking the question, of from where the ‘border adjustment’ will be measured.

What is Kosovo’s border in relation to Serbia? Kosovo’s borders are defined in its Declaration of Independence. The Declaration of Independence states explicitly that it “reflects the will of the people and it is in full accordance with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement.”

The Comprehensive Proposal for the Kosovo confirms that the territory of Kosovo is defined by “the frontiers of the Socialist Autonomous Province of Kosovo within the Socialist Federal Republic of Yugoslavia as these frontiers stood on 31 December 1988, except as amended by the border demarcation agreement between the Federal Republic of Yugoslavia and the former Yugoslav Republic of Macedonia on 23 February 2001” (Annex VIII, Article 3.2).

All countries that recognized Kosovo did so on this basis and with this territorial delimitation in mind. It would be reasonable to assume that the baseline for any ‘border adjustment’ between Kosovo and Serbia must be the border as defined in the Comprehensive Proposal for the Kosovo Status Settlement and as accepted in Kosovo’s Declaration of Independence. Kosovo cannot accept any other baseline as it would otherwise violate the very political and legal foundation of its existence as a state. But does this mean that also Serbia must recognize this border as the baseline for any future ‘border adjustments’?

The other mystery is with who will Serbia negotiate a ‘border adjustment’? With the ‘Kosovo-Metohija’ province, as Kosovo is still regarded by Serbia, or with the Republic of Kosovo as a state? For Kosovo there can be nothing less than the latter. This means that Serbia first of all needs to recognize Kosovo as a state within its existing borders in order to be able to negotiate a ‘border adjustment’ in the future.

This is how it worked with Montenegro. Montenegro first recognized Kosovo as a state within these borders and then a ‘border adjustment’ was negotiated. It cannot work the other way around as Thaçi and Vučić are pretending, especially not in the form of a legally binding international agreement as demanded by the EU.

The underlying thread of the new political discourse will be that border changes based on ethnicity are a legitimate way of solving international problems.

Another fallacy is reflected in EU Commissioner Hahn’s statement that there must be a “bilateral solution which should not serve as a blueprint for other issues.” This is a naïve belief that an adjustment of borders (or to call it what it is, namely an ‘exchange of territory’ or ‘partition’) agreed upon between Kosovo and Serbia will be accepted as specifically and exclusively applicable only to the two parties and not be used as a precedent for other contentious countries, such as Bosnia and Herzegovina, and Macedonia; a so-called ‘sui generis’ solution. As if it would be enough to include a clause in the agreement between Kosovo and Serbia that this ‘border adjustment shall not be a precedent for other countries.’

Many politicians and academics have tried to portray Kosovo’s case as sui generis. The unique circumstances of the break-up of the former Yugoslavia would warrant a special solution for Kosovo’s special problems and circumstances.

Legally, this is a way to counter the setting of a precedent. But politically, it does not work.

Russia’s reference to Kosovo as a justification for its annexation of Crimea shows what happens when a political narrative changes. Once the political narrative is set that Kosovo and Serbia reached an agreement based on territorial changes along ethnic lines, and that this was accepted by the international community, this will change the political discourse without regard to Kosovo’s specific circumstances.

Lawyers will endlessly discuss whether this situation is sui generis, but the underlying thread of the new political discourse will be that border changes based on ethnicity are a legitimate way of solving international problems.

U.S. National Security Adviser John Bolton’s remarks about the willingness of the United States to accept a ‘land swap’ between Kosovo and Serbia as a way to normalize their relations, a statement that he made in Kiev, may be an omen of where this new political discourse will find its next application, i.e. not necessarily in Bosnia and Herzegovina, or Macedonia, but in Ukraine and Crimea. Such a narrative would seriously undermine the EU’s — and especially Germany’s — efforts to stabilize the situation in Ukraine and in the Western Balkans, but it would perfectly fit a realist foreign policy termed ‘off-shore balancing.’

Trump’s ‘America First’ policy translates to an ‘off-shore balancing’ policy that the United States must remain the world’s only hegemon. To achieve that, no other power may become a hegemon in its region and be able to challenge the United States. With respect to Europe, this means creating a security competition between the two biggest powers in the region, i.e. Germany and Russia. To get there, one must divide the EU as much as possible and set Germany off against Russia. Where? In the Western Balkans and in Eastern Europe.

What about compensation for war damages? What about missing persons? What about state succession to property, archives and other important issues?

Merkel’s and Putin’s latest meeting and attempt to find some common ground for a rapprochement is therefore no surprise; it is an attempt to avoid such a security competition. Kosovo’s and Serbia’s ‘border adjustment’ therefore has far reaching political implications and is part of a much bigger political game, something that Kosovo’s political leadership has to understand. But they may find solace in the fact that even an EU Commissioner does not see through this.

A more serious fallacy is implied in Thaçi’s and Vučić’s narrative that a ‘border adjustment’ is the ultimate solution for the problems between Kosovo and Serbia. The current discourse creates the image that ‘let Kosovo and Serbia agree on a border adjustment, and everything else will be fine.’ The complexity of the political problems between Kosovo and Serbia, which need to be resolved in order to get to a proper normalization of relations, is reduced to the magic formula of a ‘border adjustment.’ Perhaps such a reductionist approach is sensible for EU High Representative Federica Mogherini and EU Commissioner Hahn, who might want a superficial diplomatic success before their terms expire next year.

But it does not resolve any of the real political problems between Kosovo and Serbia. Even if they agree on ‘border adjustment,’ what will happen to Kosovo? Will it remain a multiethnic society? What about the Association of Serb Majority Municipalities in Kosovo? Will it be established if there is agreement on border adjustment? What kind of powers will such an association have? Or will we give up on it? What rights will minorities have in Kosovo? Will we have to change the Constitution? Will Serbia change its Constitution to give up on Kosovo?

What about Serbia’s recognition of Kosovo as a state? What about compensation for war damages? What about missing persons? What about state succession to property, archives and other important issues? What about pension funds in Serbia never paid out to Kosovars? What about having the agreement with Serbia approved by the UN Security Council which would allow Kosovo to become a UN member and which would terminate Resolution 1244, which still refers to Kosovo as an autonomous entity within the Federal Republic of Yugoslavia. All these questions do not seem to be relevant. What matters is a ‘border adjustment.’

A century after Wilson’s Fourteen Points we seem to be back to ‘private international understandings’ among political leaders who have their personal interests in mind rather than that of their people. The complexity of the problems between Kosovo and Serbia cannot be reduced to a simple formula of ‘border adjustment.’ Ignoring this complexity and pretending to have reached an ‘historic agreement’ by just correcting some border line is not a recipe for normalization but for future conflict.

Feature image: Besnik Bajrami / K2.0.