Marc Weller is Professor of International Law and International Constitutional Studies, University of Cambridge. He has advised on dozens of international peace negotiations, served as Senior United Nations Mediator Experts and as Senior Advisor to the late Kofi Annan, to Lakhdar Brahimi, Stefan de Mistura and Jamal Benomar. He has written, edited or co-edited some 25 books in this area, including International Law and Peace Settlements (CUP, 2021) and the standard treatment on Kosovo, Contested Statehood: Kosovo’s Struggle for Independence (OUP, 2009). Professor Weller has served as an occasional advisor to governments of Kosovo, starting with President Ibrahim Rugova in 1992. The views expressed are those of the author alone and not attributable to any government or institution.
In a previous article, Professor Weller offered his analysis on how the Brussels negotiations on normalization of relations between Kosovo and Serbia ran into deadlock over the past months. This further analysis tries to take an outside perspective, offering some additional insights and explanations for this failing. In relation to each issue addressed, the article offers some lessons for the future of the normalization process, and other negotiations elsewhere, that can be drawn from this experience.
I. Refrain from Pronouncing on the Rationality and Irrationality of Actors
The EU Facilitators may well have felt somewhat discomforted when reading the critical analysis of the Brussels negotiations on normalization between Serbia and Kosovo offered in my recent article. They may well cry out that it is not their fault that the venture faces collapse. Rather, it is the unreasonable attitude of one side or the other, or both, that has ruined their good faith effort to bring about much needed progress in relations between Kosovo and Serbia.
From their perspective, this may be true. But the perspective of the Facilitation is not so very relevant in cases of this kind. It is only the perspective of the sides that matters in high pressure peace negotiations.
After all, the very art of facilitation or mediation is to shape the perspective of the sides unobtrusively. The task is to analyse the values, interests and position of the sides. One needs to find a way to tempt them into the process, making it safe for them to do so, and to keep them there with a view to eventually embrace a compromise. This requires a strategy that offers more benefits in consequence of constructive participation in the negotiations than would otherwise flow. A settlement must be a better alternative to not settling for both sides if there is to be a deal.
Facilitators will often claim that a compromize agreement is an end of itself. After all, in daily life, constant compromises facilitate our interactions with others. Should it not be the same in international affairs?
From that perspective, governments should settle disputes through compromise, because a compromise is inherently reasonable, and refusing it is inherently unreasonable. This is the mind-trap into which international mediators tend to fall and have fallen in this instance.
In truth, any compromise is inherently unreasonable for the sides because it means a less than optimal result for them at the end of the day. They will not have met the aims they set out to achieve in full. Hence, not signing is often a better alternative than signing the deal. Signing, after all, means giving up a position which they regard as entirely legitimate. Acceptance of an agreement is only attractive to the sides if making the necessary concessions does not cross their ‘red lines,’ or jeopardize any real or imagined vital interests on their side. In addition, making concessions must buy more benefits or concessions from the other side than making them would cost.
Whether these aims or calculations are seen by outsiders as rational or irrational does not matter. The only thing that matters are the perceptions of the sides. Standing aside and complaining that this or that actor is unreasonable or reckless does not help. Facilitators or mediators need to understand their perspectives, and engage with them, whether they consider them rational or nor, and perhaps try to shape their views in a subtle way as the process unfolds. This may involve expanding the pie, by demonstrating to the sides that they both can gain without distracting from the wins of one another.
If ignoring the perspective of the sides is an obvious recipe for failure, understanding their relative positions and interests is an obvious requirement.
II. Perform a Conflict Analysis
In this instance, an analysis of the values, interests and positions of the sides is fairly easy. Serbia still sees Kosovo as part of its territory, as confirmed in its constitution. Its political class and the general public have not undergone a fundamental transformation of their feelings on the issue. From their perspective, Kosovo was extracted from Serbia through an unjust military intervention by NATO. The fact that this intervention followed on from Belgrade’s genocidal conduct in Bosnia and Herzegovina, where over 100,000 and possibly 200,000 civilians, mainly Bosniak Muslims, where sacrificed to the ideology of Greater Serbia, has not sunk in.
Neither has the fact that the organized international community, represented by former Finnish President Martii Ahtisaari acting for the United Nations, ruled that restoration of the territory and population to Serbia was not an option. The extreme repression suffered by Kosovo and its population at the hands of Serbia before and during the conflict with NATO made this impossible without triggering another war, or in Serbia’s view, civil war.
Serbia has also not accepted the ruling of the International Court of Justice, which it had itself initiated. That ruling confirmed that Kosovo’s declaration of independence was in accordance with international law. Serbia on the other hand regards the issue as still being open. Moreover, given the broad attitude of the public, in part inspired by his own rhetoric, Serbian President Alexandar Vucic can claim that recognizing Kosovo would be political suicide. Hence, he might claim, it is the EU which must help create the conditions whereby Serbia can fulfil the requirement for EU membership, which remains for now comprehensive normalization of relations with Kosovo in a legally binding way.
Pending that outcome, which lies far in the future, if it is to be achieved at all, Serbia refuses to formally sign any agreements in relation to Kosovo, disregarding the fact that it has in fact done so in the past. It has been willing to engage on technical aspects of normalization where those lie in its own interest. It has also seized on the key demand that Kosovo must deliver an Association of Serb-majority Municipalities (ASM) before any other advances can be made.
Kosovo, and especially its present government, has its own views. From its perspective, the organized international community imposed the Ahtisaari plan on Kosovo, complete with all the requirements concerning the treatment of ethnic Serbs, including enhanced authority for Serb-majority municipalities. Kosovo accepted too much of a price for its independence while Serbia gave nothing in return. There would not be a second helping for Serbia, rewarding its initial failure to accept the Ahtisaari proposal.
Hence, normalization means that Serbia must finally acknowledge Kosovo’s status formally. It has to account for its crimes and show, through concrete deeds, that it is willing to leave the past behind and engage in a genuinely good-neighbourly relationship with Kosovo. US President Biden has confirmed that normalization must be recognition-centred, and so has the EU parliament. Any process that does not advance that aim is, in the end, meaningless.
Moreover, Kosovo is likely mindful of the fact that the organized international community has not opposed what it considers the virtual occupation of Northern Kosovo by proxy on the part of Serbia. This state of affairs, which excludes Kosovo from exercising full sovereign powers in relation to parts of its own territory, is maintained through the so-called parallel structures of government. In view of Kosovo, this is a system of terror that prevents the local Serb population from accommodating itself with the fact of governance by Kosovo and subjects it to thuggish criminal control.
Instead of combatting this situation, NATO in the shape of KFOR and the Western Allies have allowed this situation to continue. This has led to the belief in Pristina that in the long term, the North will be separated from Kosovo, or at the very least it will remain beyond the control of the government of Kosovo. Hence, the present attempts to demonstrate the exercise of Kosovo authority in the North, despite considerable international opposition. That opposition, if fact, supports the ‘conspiracy theory’ of an international campaign ultimately aiming to excise this territory from Kosovo.
Moreover, to the present government, the odd fixation of the organized international community on the issue of the ASM might reflect an attempt to give an overall unitary identity to the four Northern municipalities. This would consolidate their autonomous administration and further the aim of rendering them permanently beyond the reach of Kosovo.
Hence, when considering the interests of both sides, which seem mutually exclusive, the negotiations may seem to be an impossible project which disregards their incompatible core interests. But if it was clear from the beginning that there can be no agreement, then the actual game in this process was not to come to an agreement. Instead, it is a game of who will be to blame for the collapse of the process that will come at some point.
Each player will invest enough in the process to avoid being blamed for ending it, but not enough to allow it to succeed. Incidentally, in this sense there are more than two players, the sides, in this game. The Facilitation and the EU are an additional participant, wishing at the minimum to ensure that one of the parties, rather than themselves will be blamed for failure. In something of a self-fulfilling prophesy, Kosovo gained a sense that, given the interest to lure Serbia into the EU, Prishtia was the likely being set up to take responsibility for collapsing the process.
In principle, it was, of should have been, Serbia that would be disadvantaged in this game. In the end, Serbia would not be able to offer the recognition which was ultimately demanded of it. However, it managed to overturn this dynamic, with the assistance of the Facilitation and its international backers. Suddenly, interest focused no longer on a recognition-centred approach in the negotiations. Instead, it was only Kosovo’s obligation to implement the ASM that emerged as the supposed key towards progress in the dialogue. All this, despite the fact that all knew that there would not be a recognition-centred outcome anytime soon, if ever.
Kosovo, on the other hand, may have lost its trust and confidence in a process that has exposed it to immense international pressure and recently even ‘measures’ or sanctions.
III. Determine if the Conflict is Ripe for Resolution and Focus on Issues Where Resolution is Possible
Attempting a process that seems bound to fail before it has started disregards a key lesson drawn from negotiations theory. This lesson is that one should only negotiate towards aims that the sides can ultimately accept—there must be a Zone of Possible Agreement (ZOPA). In this instance, there was a mixing of three different layers of approaches, each with different chances of success.
At the top-level, there was normalization in a legally binding way focused on recognition. At the second level, there was confirmation that both states would conduct their relations on the basis of international law, without recognition. At the third level, there was technical normalization in relation to practical issues.
Given the constellation of the interests of the sides, it is clear that the top-level, ultimate, aim of the normalization dialogue of recognition-centred normalization expressed in a legally binding way cannot be reached at present. Negotiation theorists would therefore say that this aspect is not ripe for resolution.
Certainly for Serbia, the Best Alternative to a Negotiated Settlement, what experts call BATNA, was not to have an agreement involving recognition. Instead, it was far preferable to preserve the present status quo. This could perhaps have been overturned, if EU membership had been a very strong lure for Serbia. But given waning popular support for membership, and the broad belief that Kosovo is the cradle of Serb civilization and cannot simply be given up, this seemed unlikely. Moreover, Serbia could hope that the EU might relax its accession requirements, given its sudden wish to pro-actively attract Serbia into the Union and its present dissatisfaction with Kosovo over the issue of the ASM. Hence, no movement was required, at least at this point.
At the second level, the German-French Initiative ingeniously sought to circumvent this problem. Rather than offering full normalization that includes recognition, the example of the 1972 Agreement between East and West Germany would allow the sides to accept that their relations would be conducted at the level of international law, like sovereign and equal states, without mutual recognition in an express form. This would relieve Serbia of having to deliver what seemed impossible.
Kosovo was initially hesitant, because the Basic Agreement merely offered a ‘path’ towards full normalization, thus avoiding the recognition element which was its principal aim.
Kosovo was also hesitant because the Basic Agreement added elements that were alien to the German-German precedent of 1972. In particular, the Implementation Annex added to the German-French text by the Facilitation, introduced the requirement of instituting the ASM before most of the principal provisions of the agreement would become operational. However, in the end Kosovo accepted the proposal, wishing not to appear obstructive.
Looking at the outcome, it appears that Serbia was again not ready to go for this second option, broad normalization without recognition. The initiative was killed for Kosovo when Serbia refused to sign the Basic Agreement, rendering the provisions on the application of international law, UN principles, sovereign equality, territorial integrity, etc, essentially meaningless. While acceptance of these principles may not have been seen as overly important in relation to Serbia itself, their formal acceptance in treaty form was seen as a key ingredient for persuading the five EU government that had refused to recognize Kosovo to change their view, and hence to clear the path for Kosovo’s candidacy. Similarly, Kosovo’s progress towards UN membership would be advanced by such formal acknowledgement, if not actually fulfilled.
A third level would have been to try and make progress where it would be possible, on technical agreements that might be in the interest of both sides. Well over 20 of these agreements have been achieved thus far, although implementation has been uneven. On the other hand, this process had now been going on for over a decade, with no progress towards overall normalization in sight. It was losing credibility.
IV. Be Prepared to Retool as Circumstances Change
The EU tried for the second option but failed to consider the implications of the failure of formal acceptance of the Basic Agreement at Ohrid in March. In fact, the Facilitation appears to have known that Serbia would not sign before it convened the meeting in North Macedonia. Nevertheless, oddly, it proceeded as if it was expecting joint signature.
The plan seems to have been to press Kosovo into signing alone, which seems fairly absurd, and failed, as might have been expected. Instead, in order to rescue the Ohrid event, an arrangement was found that disguised failure. It was asserted that both sides had in fact agreed to the Basic Agreement and Annex and communicated such agreement not to one another, and not through signature of the same text, but informally to the Facilitation. This, as noted already, rendered the effort meaningless for Kosovo, fundamentally removing its interest in the process. This interest required a formally signed outcome that would at least indirectly acknowledge its legal identity, even in the absence of recognition.
Serbia also asserted that it would determine itself which, if any, of the more substantive provisions of the Basic Agreement it would implement. Hence, even some of the more practical steps it was meant to undertake, including clearing the way towards membership in international institutions, recognition of documents, certificates and licence plates, etc, would potentially not be implemented, even if Kosovo performed. All that was left was the implementation of the ASM, now Article 7 of the Basic Agreement, the one issue of core interest to Serbia and the one issue that required the greatest sacrifice from Kosovo. Unsurprisingly, Kosovo had little interest in advancing this dynamic.
The lesson may be that it would be more correct to acknowledge a circumstance where the Facilitation has misjudged the willingness of the sides, or one of them, to come to an agreement. Claiming that there was an agreement where there was none, or where there was none in the formal shape on which Kosovo’s assent depended, only delayed the failure of the process and made it worse. Disguising the true facts also avoided the need for the Facilitation to retrace its steps and consider what to do next.
There would have been three possible options for addressing the situation. First, the Facilitation could have noted that Serbia was not ready to sign the text and suspended the question of signature. Instead, demanding at that point that Kosovo alone would formally sign on a blank paper, while Serbia would not, destroyed the process of negotiating a sensible Implementation Annex and thus finalizing the overall text which was meant to be the focus of the Ohrid meeting.
The formal signature could have then been deferred to a celebratory signature conference planned some weeks later in Paris. In the meantime, Serbia could have been subjected to intensive dialogue with a view to delivering the signature that could have been demanded of it.
A second option would have been to declare that one side had been willing to sign, while the other had not been so willing, and suspend the process altogether. This would have meant working quietly, behind the scenes over the weeks to follow, to develop an instrument both sides could accept according to an agreed formula (for instance, public signature, but on separate copies of the Agreement, formal signature, one with an asterisk indicating that signature did not mean recognition, acceptance of a side-letter to that effect, etc.) Should Serbia still be unwilling to agree, it would have had to accept responsibility for that outcome. The Facilitation would then have to take a break and focus on resuming the technical dialogue on issues of interest to both sides.
The third option was the one taken—disguise the failed outcome in order to rescue the process. This would, and did, require a considerable sacrifice from Kosovo, which was losing the principal benefits it had expected from a formally signed document. Hence, there would have had to be some readjustment in the process after this outcome, ensuring at least implementation of other elements of the agreements, including those Kosovo was particularly interested in, according to a clear plan. This did not happen. Hence, the original failure re-emerged, only a few weeks after Ohrid when this became clear to Kosovo, placing the whole normalization process in jeopardy.
This also had implications for the third level on engagement, focusing on practical steps of normalization, even if the broader aims of the German-French Initiative would not be realized. The agreement foresaw a review of previous, technical dialogue agreements and acceleration in their implementation, along with the conclusion of additional ones. However, as the failed German-French Initiative now absorbed the space previously occupied by technical normalization, there is not likely much appetite for focusing again on specific, sectoral advances.
Overall, therefore, the German-French idea offered a way forward short of the formal recognition that seemed to be ruled out. The success of this initiative was however heavily mortgaged by combining this angle of attack of normalization without recognition with the requirement for Kosovo to of implement the ASM. This made acceptance by Kosovo less likely. Nevertheless, Kosovo persuaded itself to accept, seeking to exhibit a constructive attitude. However, the venture was doomed when the Facilitation allowed Serbia to remove the one key incentive flowing from the Basic Agreement, which was clarifying that relations would now be conducted on the basis of international law.
The lesson therefore is that in planning an approach to a mediation, it is important to dissect carefully where a zone of possible agreement between the parties lies. Mixing the different strands of possible agreement moved the venture out of that zone. Moreover, the failure to accept failure did not overcome failure. Simply claiming that Serbia had accepted the Basic Agreement, while it had not done so in relation to Kosovo in a formal, internationally visible and legally binding way, did not remove this defect. At some stage Kosovo would cry foul, as it eventually did.
V. Correct Balance of Obligations
It was noted that there were three different levels of possible agreement, each requiring a differing level of commitment from the sides (full normalization, normalization without recognition, technical agreements). However, whichever level of agreement would have been selected, the question of a Zone of Possible Agreement also applies in relation to its individual elements. That is to say, in relation to each individual substantive obligation, there would need to an individual negotiation and bargaining process. This may result in an obligation that satisfies a common interest of both sides equally or it may be a concession by one side relating to one obligation traded for a concession concerning another obligation by the other side. Finally, a whole clutch of obligations may be accepted by one side because it expects to gain something more valuable from the overall agreement.
The Basic Agreement as proposed by the Facilitation contained most of the provisions of the 1972 German-German Basic Agreement. However, the Facilitation then added additional elements particular to the context of Serbia and Kosovo.
The first pair of opposing or matching interests concerned the very concept of the German-French Initiative. For Kosovo, it meant accepting that recognition would not be forthcoming for some time. This was however balanced by the determination that relations between Kosovo and Serbia would henceforth be conducted on the basis of international law, the principles of the UN Charter, good neighbourly relations, etc. For Serbia, it meant (or was meant) to trade the signature of a formal agreement with Kosovo without needing to recognize it for being able to claim to have made a significant step on the path towards normalization. This would result in further acceleration of the EU accession dialogue.
Other possible pairs of obligations where the sides might have traded interests might have related to recognition of respective documents and national symbols, not objecting to Kosovo’s membership in international organizations and accepting that only Kosovo can represent its own territory internationally, formalizing the Status of the Serbian Orthodox Church in Kosovo, etc. In fact, in the first draft of the Implementation Annex submitted to the side in December of last year, the facilitation established a pairing of obligations where the one would be implemented in consequence of the other. However, it also breached the principle of reciprocity with respect to Article 7 of the agreement, or the issue formerly known as the ASM.
Kosovo was meant to deliver a draft statute under Article 7 before some two-thirds of the other obligations in the agreements were meant to enter into force. Presumably the reason is that there was a lack of trust in Kosovo’s good faith in performing that obligation, given its hesitancy to implement an agreement of 2013 that had originally provided for the then ASM.
However, that approach disregarded the natural pairing of interests that had underpinned the original willingness of Kosovo to accept an ASM in 2013. This was the reciprocal expectation that granting an ASM would result in the removal of parallel structures of governance in Northern Kosovo. This aspect was in fact included in Article 7 of the Basic Agreement, at least in an indirect way, concerning funding from Serbia for activities in the respective municipalities. Yet, the design of the balancing pair of obligations in the Implementation Annex entirely left out this connection, turning the ASM into a unilateral commitment based in previous agreements that Kosovo would now have to fulfil instantly.
From Kosovo’s perspective, the demand for unilateral action before most of the provisions of the Basic Agreement would even enter into force was not justified. It gave the appearance that the entire venture of the Basic Agreement was a means of forcing it into making unilateral concessions on the one item presenting greatest difficulty for it. Resistance to this particular implementation mechanism was accordingly strong.
VI. Building Personal Relationships
Facilitating negotiations of this kind is a complex and admittedly difficult process. The one thing it requires is the building of confidence in the person of the facilitator. The top-level interlocutors need to feel comfortable with him or her and develop trust.
The perspective of Facilitator or mediator and of the sides is different. The Facilitator will undertake the task as one of many stages in his or her career. He or she will give his or her best, but that is all can be expected. For the interlocutors from the sides, the issues to be discussed concern what they see as questions of national survival. Not only will their political future depend on their performance, but they will feel intense pressure to ensure that they do not lose anything for the nation that has entrusted them with the mandate to represent it. They are prone to unending interventions from their often quite radical constituents, demanding that a hard line must be maintained.
Sometimes, the interlocutors will be seasoned politicians and negotiators experienced in dealing with such pressures. In other instances, they may be new to the job, or at least to high pressure negotiations at the international level. The Facilitator needs to devote a great deal of time to understanding them. This is not just a matter of reading the conflict analysis his or her sherpas have given him or her to read on the plane en route to a meeting. It requires a genuine interest in the person concerned, in his or her individual story, and in the principles according to which he or she will take decisions. It may be too much to say that a good mediator opens up a window into the soul of the key decision-makers he or she encounters, but it is not far wrong.
This is particularly true where much depends on the very personal decisions of one or two top leaders, as is the case in relation both to Serbia and Kosovo. Both top leaders are in a position where they alone take decisions. Yet, they face difficult, if not tumultuous circumstances connected with the negotiations in their respective domestic arenas.
Unless there is a deep understanding of the way each of them will analyse a given situation, or the proposals the Facilitator may offer, each step undertaken by the facilitation will be a step into the unknown, risking misunderstandings and frustration. The fate of the Implementation Annex, which only survived the Ohrid disaster in a seriously plucked version, offers a good example.
In this instance, there was no indication of any great interest of the Facilitator in his negotiating partners. Discussions were comparatively rare, always formal and relatively meaningless—a far step away from establishing rapport and trust. There were no trips to Tito’s former hunting lodges for long fire-side chats over a weekend with the President of Serbia, or similar excursions to Rugova valley in Kosovo. There were no occasions where the Facilitator, or one of the interlocutors, might informally float ideas or ways out of potential deadlock that the sides, too, would have anticipated.
As the process progressed, the visits of the Facilitator, at times coinciding with the presence of a high-level interlocutor from the United States, did not have the appearance of a search for understanding. Rather, they were occasions to reinforce demands and pile on the pressure.
VII. Engage with the Sides
Beyond failing to build rapport with the top leadership on both sides, the Facilitation proceeded in rather a mechanical way. It first issued the substantive draft text of the Basic Agreement in September of last year. It then reissued that text in December, some small adjustments having been made after receiving comments from the sides, also adding a compact Implementation Annex. Then, the text of the Basic Agreement was simply declared closed for further discussions well before the High-Level Meeting at the level of President and Prime Minister that aimed for the endorsement of the final text on 27 February.
In essence, therefore, there were no actual negotiations between the sides on the substance of the agreement. The process was mainly conducted remotely. This approach may commend itself to a mediator when he or she is persuaded that the sides will not likely engage with one another in a constructive way. However, certainly at a point when a text is being put forward by a facilitator, one might expect actual direct negotiations between the sides on the document, or in rare instances negotiations in a proximity format where the parties are unwilling to encounter one another directly.
Much of the Basic Agreement was of course copied and pasted from its German ancestor of 1972. Still, several key additional provisions specific to Serbia and Kosovo had been added. There were some changes to the German example, and the odd provision had been mysteriously omitted. Declaring the drafting finished without having had the opportunity to engage with the sides in detail on the text would risk discovery at a late stage that an element of the text would be unacceptable to the one or other delegation. Moreover, the balance of obligations, and hence the likelihood of overall acceptance of the text by both, relied on the assessment, or guesswork, of the Facilitator and his team, the draft not having been thoroughly road tested by him.
This was particularly the case where the implementation annex is concerned. There was no model for it in the example of the German treaty of 1972. It was entirely the design of the Facilitation. After it had been on the table for some months, the Facilitator visited the capitals of the sides to hear their views. In fact, this was only one week before the final Ohrid Conference where the text was meant to be agreed.
VIII. No Surprises
The process concerning the Implementation Annex was no negotiation at all. There was one relatively brief meeting where comments from the sides were received by the Facilitator. The Facilitation then went away and, in a surprise move for Kosovo, presented a much-changed version, three times the original length, on the eve of the conference that was meant to endorse it. The process was entirely non-transparent. There was no explanation of the reasons for the changes, which, from Kosovo’s perspective, seemed only to accommodate the other side. And, as it turned out, the sides had no opportunity to challenge the document that was to be the basis of the one-day discussion intended to lead to its acceptance by them both.
In the end, there were no actual negotiations on the annex as drafted even on that one day, in view of Serbia’s announcement that it would not sign whatever might be agreed. Instead, the Facilitation offered gutted versions of the document every few minutes, seeking to retain something. By then, Kosovo had little interest in facilitating that endeavour by accepting provisions it might otherwise have agreed to, had formal signature to the overall agreement been on offer. In any event, it seems very odd to present an entirely new document of some 18 substantive articles to the sides a day before the meeting and expect them to agree a final text in a matter of a few hours.
Of course, the expectation throughout this entire process was that the sides were both under sufficient pressure to accept more or less whatever was placed in front of them. But this assumption failed when, even under pressure, one of the sides, Serbia did not give in.
Overall, there was therefore very little engagement with the sides, or at least with Kosovo, creating a sense that it was somewhat of a passenger in an unpredictable process over which it had no control and little influence. That process seemed heavily skewed in favour of Serbia.
The lesson may be that there needs to be an agreed modality for the negotiations between the sides. If there are no or only a few rounds of direct discussions, the contacts with the facilitation at working level and at top level between the rounds need to be extensive and continuous, focusing on exploration of the positions of the sides. If the Facilitation itself is to put forward a first, consolidated negotiating text, then it needs to be evident for the sides where it came from and to what extent it reflects their own inputs, or those of the other side.
If trust and confidence in the negotiating process is to be maintained, the facilitation process has to be linear and predictable. The sides need to know in advance what will be discussed, in what format and under what modalities. Normally, they will have significant influence in shaping the process, ensuring that both are comfortable with it.
IX. Listening to the Sides
The process needs to offer an opportunity for inputs at agreed stages. Critically, both sides need to feel that their inputs are valued and listened to. This applies also where there is a divergence in the technical quality of the inputs from the sides. The fact that a side does not clearly and professionally express a view or position does not mean that the Facilitation can ignore it. Where a submission is not well crafted, it is up to the Facilitator to work extra hard to understand what its aim is, and to offer reassurance to the side that offered it that its views are being understood. This includes listening to nuances and detecting hesitations. Again, failure to detect objection or divergence early and to deal with the issue then and there will simply mean that a problem will occur again later, when it is more difficult or by then impossible to address it.
X. Coercive Negotiations no Longer Work
As was already noted, the negotiations for the Basic Agreement and Annex were not really negotiations in any classical sense. Texts would be produced by the Facilitation and either remained as they were or changed without much or any explanation. Presumably this approach reflected the sense of the Facilitation that the sides would never agree anything if left to discuss items in a more direct format which would have given them more influence in shaping the text.
This may be a reflection of the experiences of the EU and its officers involved with earlier peace negotiations concerning the Balkan arena. The approach from Dayton to Rambouillet has very much been one of ‘directed’ negotiations, where the Facilitation would generate a text that would in the end stand, unless both sides can agree a change to it.
However, times have moved on from this approach of the 1990s. As the immense efforts of the EU and US have demonstrated, neither of the two sides could in the end be pressed to conform with the scheme developed by the international actors. Serbia did not sign. Kosovo started to object as the actual outcome of the talks was understood better and is seen by some analysts as being at risk of opting out altogether if its interests are not accommodated.
It is admittedly painful and takes a huge amount of patience to facilitate a process of this kind. But the recipe of simply submitting a text and expecting its ready acceptance by the sides, if need be, under international pressure, no longer works. The effort has to be expended to explain and explore, first with each side individually, and then with both together, which issues can be addressed. If it emerges that there are any issues where a Zone of Possible Agreement exists, one can then investigate how this can be exploited to the common benefit of the sides.
Ordinarily, even a mediator would be reluctant to offer his or her own text, at least until the process is well advanced and ripe for such a move. A facilitator, on the other hand, would be even more hesitant, and probably only do so at the express invitation of the sides. Once this has occurred, the rules on how the text develops would need to be in place. Ordinarily, the sides would continue negotiating until they agree each individual provision, at times trading concessions across provisions in the process.
While this process can be lengthy, it is not useless. The sides and the facilitation will build understanding of their respective positions. The facilitation can offer examples from other cases of settlement, refer to standards that can help decide an issue, or seek outside expert input. There may also be opportunities and time to offer capacity building to the sides. Moreover, over time, the parties may socialize themselves into a routine process of interacting with one another.
XI. Making Promises one Means to Keep
The issue of trust in the facilitation has already been raised. Inexperienced delegations will take a long time to develop a sense that they are not being taken for a ride in a process they will, in the end, not be able to control. More experienced delegations will object early and prevent such a process from even starting. However frustrating for the Facilitator, this is in fact more helpful than proceeding for several months, before discovering that he or she has lost the confidence of a side in the process, placing all the imagined progress in jeopardy.
In this particular instance, a great deal of effort was expended on persuading Kosovo to sign the Basic Agreement and, later, also the Implementation Annex. Having connected the Basic Agreement with the extraneous issue of the ASM, later Article 7 of the Basic Agreement, made this process even more difficult. The Facilitator and the interlocutor from the US dispatched to secure the acceptance of the sides, were moved to give very specific assurances to Kosovo to help overcome this difficulty of their own making.
They offered very firm assurances that a formal letter sent some years earlier by the then Vice President of the European Commission and High Representative for Foreign and Security Policy, Federika Mogherini, would protect Kosovo from an expansive interpretation of how Article 7 of the Basic Agreement, formerly the ASM, would be implemented. This was reinforced by fresh pledges and promises by the Facilitator himself, concerning the means by which the statute for the mechanism would be generated and what the ASM would definitely NOT be.
Soon after Kosovo had accepted the Basic Agreement and what remained of the Annex after the Ohrid debacle, the Facilitator wrote to Kosovo, announcing that he might not comply with the promises so firmly given. This led to a sense of betrayal and a breach of trust from which the process will not easily recover.
The lesson is therefore that it may sometimes be necessary to offer assurances or side-letters to a party to an agreement in order to achieve consent. However, such assurances must be carefully calibrated and thought through. In this instance, having the supposed acceptance of the sides to the Basic Agreement in hand, the Facilitator may well have realized that it would in practice be difficult to bring his promises made to Kosovo to bear in relation to the other side, to Serbia. Hence, he started to disown them. The possible breakdown of the process since then is a logical consequence.
The same occurred the other way around. Apparently, Serbia sent various side letters of interpretations of what had or had not happened at Ohrid to the facilitation. These appeared to have disowned the agreement that had in any event not been signed. They also appeared to claim that Serbia reserved the right to determine, which, if any, of the obligations of the Basic Agreement and Annex it might implement. While the promises given by the facilitation to Kosovo have in the main been made in public, these supposed side-agreements or unilateral interpretations were not visible to Kosovo. Again, this contributed to distrust.
XII. Sticking to the Assigned Mandate
In international negotiation practice, designations matter. The exercise of good offices means assisting in creating the means of communication between the sides. A facilitator has the slightly more involving technical task of supporting dialogue between the sides, normally without a mandate to offer his or her own suggestions. He or she may arrange meetings, ensure access of the sides to the negotiating venue, help the sides in agreeing an agenda or methodology, and assist in generating a convivial atmosphere. A mediator may take a more active role, although he or she, too, will generally be discouraged from presenting his or her vision for a settlement to the sides. This may happen at a later stage, and with the encouragement of the sides, when their positions are well understood. Finally, a conciliator may offer a report on the dispute between the sides, culminating in a proposal for a resolution. However, the sides are not bound to accept his or her recommendation.
In this instance, the mandate granted by the EU is a modest one—facilitation. Nevertheless, the process has taken on the mantle of directed mediation or even conciliation. The Facilitator offers substantive solutions and even supposedly final texts. These are not binding on the sides. But whichever side does not accept them will find itself under intense international pressure to assent.
The Facilitator has attempted in this instance to overcome the likely inability of the sides to come to agreement by assigning for himself ‘final authority to interpret’ on the difficult issue of implementation of Article 7. In practice this would mean that he determines the outcome where the parties fail to do so. Such a role is entirely alien to the concept of facilitation.
Again, this move confirmed at least the Kosovo side that it would sign on to a process which it would, in the end, not be able to control. It was a process specific to Article 7 only, and hence focused only on the one issue that appeared to run against Kosovo’s interest.
The same occurred later, when the Facilitator proposed a methodology whereby he would, in the end, draft the statute for the Article 7 mechanism. The sides might register their objections, but these would not change the end result he would announce and which the supporting governments might then enforce through pressure. Again, rather than waiting for a process to develop that would give legitimacy to an outcome on Article 7 that Kosovo had not accepted, jumping off the train while it was still moving slowly might seem the best option.
XIII. Committed Facilitation or Mediation
Serbia might have entered the Brussels dialogue fearing that it was facing what is known as ‘committed mediation’ or, in this instance, supposed facilitation. After all, the EU and the US, in the shape of NATO, had conducted an armed campaign against the former Yugoslavia, essentially Serbia at that point, with a view to liberating Kosovo from profound repression.
A committed mediator is known by both sides to be an ally of just one of them. For instance, when the US mediates in the Middle East, it is clear that it is a very firm ally of Israel. All know that the US will never allow a deal to go through that offends against Israel’s fundamental interests. Still, the US is an acceptable mediator, because it is expected that Washington is the only power able to persuade Israel to accept a balanced outcome, if one is emerging from the process.
In this instance, the EU had its own interests at stake, although not as expected only a year or two ago. Due to the intervening Ukraine crisis, there was suddenly an overwhelming interest in attracting Serbia into the West instead of letting it drift further towards the Russian Federation. The tool to achieve this is the lure of EU membership. However, comprehensive normalization with Kosovo in a legally binding way is a requirement Serbia has to fulfil as part of its accessions criteria. Failing to grant recognition would, or should, have blocked the prospect of EU membership.
This fact would ordinarily be expected to generate significant leverage for Kosovo. Without its agreement, comprehensive normalization could not be achieved, ruling out EU membership for Serbia. However, this power suddenly turned into a liability.
The EU, with very strong support from the US, turned on Kosovo, demanding that it would need to clear the way towards normalization in view of the changed situation brought about by the war in Ukraine. This pressure meant that Kosovo’s principal allies from one minute to the next became committed mediators favouring the other side. Suddenly, Kosovo was the obstacle in the process, rather than Serbia, and Kosovo would have to make the main concessions in order to remove that obstacle.
A committed mediator or facilitator may share ultimate red-lines with one particular side. However, if the mediation is to have any chance of success, such a committed facilitator must work extra hard to persuade the side that will feel disadvantaged by this arrangement that the process and outcome will still be balanced and fair. This means that the argument used by the US and EU that Kosovo ‘did not get’ the overall, geostrategic game focused on capturing Serbia for the West was fundamentally misplaced. This line of argument would likely confirm to Kosovo that this game was stacked against it, aiming for an outcome favouring Serbia and sacrificing Kosovo’s interests. Opting out or moving the international focus from normalization negotiations to crisis management, might be the only option to avoid an even worse result.
XIV. Pressure before Analysis
It is, of course, possible for the Facilitation, or rather states supporting a facilitation process, to increase the cost for one side, should it fail to accept an agreement. This is what is known as ‘shaping the negotiations environment’—a technique employed in relation to so-called ‘spoilers’ in international negotiations. This means that the Facilitation employs powerful political backers to weaken the position of the obstructing side.
The key allies and traditional friends of Kosovo, the so-called Quint of the United States, United Kingdom, Germany, France and Italy, have all dissociated themselves from the position of Kosovo and aligned themselves in an unqualified way with the EU Facilitation. While they may have had private thoughts about the quality and competence of the Brussels equippe, this is now all wiped away. What is increasingly perceived as irrational and obstructive action on the part of Kosovo has polarized positions. The Quint is showing a united front in order to bring the deviant side back into line.
In such a situation, analysing the reasons for what is seen as obstruction would ordinarily be the correct next step. If one side in negotiations feels impelled to opt out of the process, or risks to delay the process by undertaking action in another theatre (say, the North of Kosovo), this would normally call for an analysis of the reasons for such behaviour. In this instance, it is unlikely that the decision to install the mayors in their offices in the four Northern municipalities was in fact directly intended to torpedo the Brussels negotiations. Rather, Kosovo took the view that Serbia should not be rewarded for having caused the boycott of the local elections. Instead, the lawful process would take its cause, even if the elected mayors had only attracted a tiny number of votes due to the boycott.
Still, the question for the Facilitation and supporting states would need to be this: Why would Kosovo have undertaken an action in the North, if it would have expected that this would trigger a disruption in the normalization process and risk friendly relations with key allies? Normalization should, after all, meet Kosovo’s key interests, and advancing rather than inhibiting it should be its core aim.
Presumably the answer is that the Kosovo government felt that the normalization negotiations had turned into something it could no longer control, and that was leading towards a final result that it could never accept. The Facilitation was determined to plough on with the process, whatever the protestations of Kosovo, with ever increasing international impatience and pressure being applied. It would have been clear to the government that continuing the process as conducted by the Facilitation would eventually cross Kosovo’s red lines. Hence, it might be better to put the process on hold for now, before significant further concessions had been wrung out of Kosovo due to heavy international pressure on the way to inevitable failure.
XV. Exhausting Sanctions Early
The problem for the backers of the EU process is that virtually the entire arsenal of means of pressure has now already been applied in relation to Kosovo’s supposed reckless behaviour. The EU and the US have announced a campaign of abandoning their stance of providing diplomatic backing for Kosovo in the global arena. Isolation is to be manifested in refusing high-level contacts. Moves towards closer relations with NATO and the EU—a key interest for Kosovo—have been frozen. Additional sanctions, in the form of ‘measures’ have been adopted by the EU. Thus far these are meant to be directed at the government, rather than at the population itself (visa-free travel has not yet been suspended).
The United States has even already exhausted the final tool in the arsenal, which is regime change. The US arranged the collapse of the coalition government headed by elected Prime Minister Albin Kurti already back in March 2020, some two months after it took office. Incidentally, it is a sign of the role of international actors in Kosovo that this soft coup is not even denied by its authors or much debated among Kosovo’s international friends (or, indeed, in Kosovo itself). It is merely a fact of life. The result was rather counterproductive though. In the elections that followed, Albin Kurti was returned to office with an even larger majority, allowing him to rule without much involvement of other parties.
This has led to a sense within this present government that it may be fairly immune to further measures of this kind. If another collapse of the government could be arranged, and fresh elections were called at this point, it is likely that Prime Minister Kuri would be returned to office with a larger majority still. The popular spirit of resistance to what is perceived to be international tutelage is going that way and is fed rather than overcome by the international measures taken thus far. It is not clear whether further ‘measures’ hitting the population more generally would reverse or strengthen that trend. Anyway, Kosovo may think that it can rely on the fact that its allies would not like to see the country destabilized by sanctions, forcing them in the end to rebuild what they have destroyed.
It is of course true that the present situation is not going to resolve itself. Both sides, Serbia and Kosovo, need to de-escalate. There is a risk that the task of crisis management relating to the North becomes intertwined with the normalization process. For instance, yet again, action on the famed ASM, now Article 7, may be included among the steps that need to be taken to de-escalate. Serbia is demanding such action before it is willing to lift its injunction preventing local ethnic Serbs to participate in fresh local elections.
This could, once again, reflect a miscalculation of the balance of obligation that is required for an agreement that works. Rather than going on as before, the EU and its backers will need to restore a sense of balance and fairness in the normalization process, taking account of the above lessons. However, international patience may be wearing thin, and however justified the criticisms toward the one or the other party, this includes listening to the sides. It will require some re-tooling, in view of the changed balance of interests that has emerged from the failure of Serbia to formally sign the Basic Agreement and Annex. Condemnation and punishment will not do the trick. Otherwise, the prediction of many that normalization will have fully collapsed before the end of the summer will likely be fulfilled early.
