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By:
Marc Weller
- June 21, 2023 22:00
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In the preliminary analysis, Professor Weller wrote how Brussels' negotiations for the normalization of relations between Kosovo and Serbia reached a dead end in the past months. This follow-up analysis attempts to provide an outside perspective with some additional insights and explanations for this failure. In relation to each issue addressed, the paper offers some lessons for the future of the normalization process and other negotiations that can be drawn from this experience.
The author is a professor of international law and international constitutional studies at the University of Cambridge. He has advised in dozens of international negotiations; served as an advisor to the now deceased Kofi Annan, Lakhdar Brahim, Stefan de Mistura and Jamal Benomari. He is the author, editor and co-editor of over 25 books in this field, including "International Law and Peace-settlements" (International law and peace agreements) - (Cambridge University Press, 2021) and the standard treatment for Kosovo, "Contested Citizenship: Kosovo's Struggle for Independence", (Oxford University Press 2009 / KOHA Publications, 2010).
Professor Weller has served as an ad hoc adviser to the governments of Kosovo since 1992, starting with President Ibrahim Rugova. The views expressed here are his own and cannot be attributed to any government or institution.
I. Refrain from declaring the rationality or irrationality of the actors
The EU facilitators may have been concerned after reading the critical analysis of the Brussels negotiations for normalization between Serbia and Kosovo, offered here a few days ago. They could easily say that it is not their fault why the company is facing collapse. In fact, it is the unreasonable approach of one or the other party or both that has destroyed the effort and good faith to bring much-needed progress in the relations between Kosovo and Serbia.
also LESSONS FROM THE BRUSSELS DIALOGUE OF KOSOVO AND SERBIAFrom their perspective, this may be true. But the perspective of the Facilitators is not relevant in cases like this. Only the parties' perspective matters in high-pressure negotiations.
Finally, it is precisely the art of facilitation or the mediation of facilitators to shape the perspective of the parties, in the most discrete form possible. The task is to analyze the values, interests and positions of the parties. A way must be found to lure them into the process, offering them certainty about it and keeping them there with the idea that they will eventually embrace the compromise. This requires strategies that provide more benefits as a result of constructive participation in negotiations than when it is the other way around. Agreement should be a better alternative than disagreement, for both parties, if agreement is reached.
Facilitators will often say that the deal is an end in itself. Finally, in everyday life, permanent compromises facilitate our interaction with others. Shouldn't it be the same in international reports?
Seen from this perspective, governments should resolve disputes through compromise, because compromise is inherently reasonable and its rejection is inherently unreasonable. This is the mental trap in which international mediators often fall, and in which they are caught in this case.
The truth is, any compromise is inherently unreasonable for the parties, as it implies a less than optimal outcome for them in the end. Because they would not reach the set goals completely. Therefore, sometimes not signing is better than signing an agreement. To sign, after all, is to give up a position that the parties see as legitimate. Accepting an agreement is attractive to the parties, if making necessary concessions does not cross their "red lines", or if it does not endanger their real or imaginary interests. Moreover, making concessions should result in more benefits or concessions from the other party at the least possible price.
Whether these goals or calculations are viewed by outsiders as rational or irrational does not matter. The only thing that matters are the perceptions of the parties. Standing by and complaining that this or that actor is unreasonable or reckless does not help. Facilitators or mediators need to understand their perspectives, get involved, whether they consider them rational or not, and perhaps try to shape their perspectives in a subtle way as the process unfolds. This may mean the expansion of the "cake", proving to the parties that both parties can benefit without being distracted by the benefits of the other party.
If the perspective of the parties is ignored, then this is a clear recipe for failure, so understanding their relative positions and interests is an obvious need.
II. Conduct an analysis of the conflict
In this case, the analysis of the values, interests and positions of the parties is quite easy. Serbia still sees Kosovo as part of its territory, as confirmed by its Constitution. Its political class and general opinion have not experienced the fundamental transformation of their feelings on the issue. From their point of view, Kosovo was taken out of Serbia with an unreasonable NATO military intervention. The fact that this intervention followed Belgrade's genocidal behavior in Bosnia-Herzegovina, where 100 and perhaps 200 civilians, mostly Muslim Bosniaks, were sacrificed for the ideology of Greater Serbia, has not sunk in.
Nor the fact that the organized international community, represented by the former president of Finland, Martti Ahtisaari, acting on behalf of the UN, issued the norm that the return of Serbia's territory and population was not an option. The extreme repression, which Kosovo experienced together with its population from Serbia before and after the conflict with NATO, made this impossible without starting a war, or, according to Serbia's point of view, a civil war.
Serbia has not accepted the opinion of the International Court of Justice, which it initiated itself. This opinion confirmed that the declaration of Kosovo's Independence was in accordance with international law. Serbia, on the other hand, considers this issue still open. Moreover, given the approach of public opinion, partly inspired by its own rhetoric, the president of Serbia, Aleksandar Vučić, can say that recognizing Kosovo would be political suicide. Therefore, he could say, the EU is the one that should help create the conditions on the basis of which Serbia will fulfill the conditions for EU membership, which generally means the comprehensive normalization of relations with Kosovo in legal form mandatory.
Depending on this result, which is far in the future, if it would be fulfilled at all, Serbia formally refuses to sign any agreement in relation to Kosovo, ignoring the fact that it has done so in the past. It was ready to be involved in the technical aspects of normalization, where there was interest. It has also been caught on the key demand that Kosovo should establish an Association of Serb-majority municipalities (AKSHS), before any further moves are made.
Kosovo, and in particular the current government, has its own points of view. From its perspective, the organized international community imposed the Ahtisaari Plan on Kosovo, complete with all the requirements related to the treatment of ethnic Serbs, including expanded powers for Serb-majority municipalities. Kosovo has accepted a lot for the price of its independence, while Serbia has not given anything in return. There will be no second aid for Serbia, because it initially refused to accept Ahtisaari's proposal.
Therefore, normalization means that Serbia must finally recognize the status of Kosovo formally. It must give responsibility for its crimes and show, through concrete actions, that it would be ready to leave the past behind and engage in a relationship of good neighborliness. American President Biden has confirmed that normalization should have recognition at the center and the European Parliament has acted in the same way. Any process that does not advance this goal is ultimately meaningless.
Furthermore, it is well aware that the organized international community has not opposed what it considers the virtual occupation of northern Kosovo by representatives of Serbia. This situation, which excludes Kosovo from the possibility of exercising full sovereignty in relation to parts of its territory, is maintained through the so-called parallel governance structures. From Kosovo's point of view, this is a system of terror that prevents local Serbs from recognizing Kosovo's government and forces them to submit to criminal gang control.
Instead of fighting this situation, NATO in the form of KFOR and the Western allies have allowed this situation to continue. This has led to the conviction in Pristina that in the long run, the north will be separated from Kosovo, or that, at least, it will remain outside the control of the Government of Kosovo. Hence the current efforts to demonstrate the exercise of Kosovo's authority in the north, despite considerable international opposition. This opposition, in fact, supports the "conspiracy theory" of an international campaign that has the ultimate goal of separating this territory from Kosovo.
Moreover, the current government sees the strange fixation of the international organized community on the AKSHS issue as an attempt to give an overall unitary identity to the four northern municipalities. This would consolidate their autonomous administration and push even further the goal of finally leaving Kosovo's control.
Thus, when looking at the interests of both parties, which seem mutually exclusive, negotiations can resemble an impossible project that ignores their core and irreconcilable interests. But if it was clear from the beginning that there could be no agreement, then the current game in this process was not aimed at an agreement. Instead, this is a game of who to blame for the collapse of the process that will happen in an instant.
Each player will invest enough in the process to avoid guilt about the outcome, but not enough to allow it to succeed. So, in this sense, in this game there are more than two players, i.e. the parties. Facilitation and the EU are the other participants, who at least hope that one of the parties, and not them, will be blamed for the failure. In something of a self-fulfilling prophecy, Kosovo was led to believe, given its interest in luring Serbia into the EU, that Prishtina was likely walking into a trap to be held responsible for the failure of the process.
In principle, it was, or should have been, Serbia that would lose its advantages in this game. In the end, Serbia would not be able to provide the recognition that was ultimately required of it. However, it managed to reverse this dynamic, with the help of Facilitation and its international supporters. Suddenly, interest was no longer focused on the negotiation approach with recognition at the center. Instead, it was now only Kosovo's obligation to implement the AKSHS, which emerged as the supposed key to progress in the dialogue. All this, despite the fact that everyone knew that there would be no result of mutual recognition any time soon, if at all.
Kosovo, on the other hand, may have lost confidence and security in a process that has exposed it to a great deal of international pressure, and now even "measures" or sanctions.
III. Determining whether the dispute is ripe for resolution and focusing on issues where resolution is possible
To attempt a process that seems headed for failure before it even begins ignores a lesson learned from negotiation theory. This lesson is that one should negotiate towards goals that the parties can ultimately agree to — there must be a Zone of Possible Agreement (Zone of Possible Agreement - ZOPA in English, ZMM in Albanian). In this case, three levels of approaches are mixed, each with a different chance of success.
At the highest level, there was legally binding normalization focused on recognition. In the second, it was the confirmation that both states would lead mutual relations based on international law, without recognition. In the third plane, it was the technical normalization in relation to practical issues.
Considering the constellation of interests of the parties, it was clear that the aim of the highest level, the most recent, for the normalization dialogue with recognition at the center expressed in a legally binding form cannot be achieved at present. Negotiation theorists would therefore say that this aspect is not ripe for resolution.
Undoubtedly, for Serbia, the best alternative for a negotiated agreement - AMMN (Best Alternative to a Negotiated Settlement – BATNA), was that there was no agreement that would involve recognition. Instead, it was more likeable to be saved the status quo current. This might have been reversed, if EU membership would have been too tempting for Serbia. But given the weak popular support for membership and the widespread belief that Kosovo is the cradle of Serbian civilization and that it cannot be renounced, this seemed unfeasible. Moreover, Serbia could hope that the EU would soften the conditions for accession, given its sudden desire to lure Serbia into the EU, as well as the current resentment towards Kosovo over the AKSHA issue. of. So no move was called for, at least at this point.
On the second level, the Franco-German initiative, wise, tried to avoid this problem. Instead of full normalization involving recognition, the example of the 1972 East and West Germany Agreement would enable the parties to accept that their relations could be developed at the level of international law as sovereign and equal states. , without mutual recognition in express form. This would free Serbia from the obligation to fulfill something that seemed impossible.
Kosovo was reluctant at first, because the Basic Agreement merely offered a "path" to full normalization, thus avoiding the element of recognition that was its primary goal.
Kosovo was also reluctant because the Basic Agreement added elements that did not derive from the German-German precedent from 1972. In particular, the Implementation Annex also had something that distinguished it from the German-German text, which was added by the Easement. The request for the establishment of the AKSHS was introduced before most of the most important provisions of the agreement could be implemented. However, in the end, Kosovo accepted the agreement, in order not to appear as an obstructing party.
When you look at the result, it seems that once again Serbia was not ready to sign this second option, broad normalization without recognition. The initiative was scuttled for Kosovo when Serbia refused to sign the Basic Agreement, thus making provisions for the implementation of international law, UN principles, sovereign equality, territorial integrity, etc., essentially meaningless. While the acceptance of these principles may not have been of much importance to Serbia itself, their formal acceptance in treaty form was seen as a key ingredient in persuading the five EU governments that had refused to recognize Kosovo to switch. mind and thus pave the way towards Kosovo's candidacy for the EU. Similarly, Kosovo's progress towards UN membership would be advanced through such formal recognition, even if not actually accomplished.
A third level would be to try to achieve progress, where possible, on technical agreements in the interest of both parties. Over 20 such agreements have already been reached, although implementation has not been regular. On the other hand, this process has already been developed for over a decade, without progress towards normalization. He was losing credibility.
IV. Willingness to adapt to changing circumstances
The EU tried to implement the second option, but failed to consider the implications of failing to formally accept the Basic Agreement in Ohrid in March. In fact, Lehtisini seems to have known that Serbia would not sign even before they met in North Macedonia. However, the Facilitator continued as if expecting mutual signature.
The plan seems to have been to pressure Kosovo to sign alone, which seems quite absurd, and it failed, as expected. Instead, in order to save the Ohrid event, an arrangement was found that camouflaged the failure. It was asserted that both parties had in fact agreed to the Basic Agreement and the Annex and that they did not communicate this to each other by signing the same text, but did so informally to the Facility. This, already highlighted, made the effort pointless for Kosovo, because it fundamentally sidelined its interest in the process. This interest required a signed result, which at least indirectly recognizes her legal identity, even in the absence of recognition.
Serbia also asserted that it would determine for itself which, if any, provisions of the Framework Agreement it would implement. So, even some of the practical steps it had to take, including opening the way to membership in international institutions, recognition of documents, certificates and registration plates, etc., would potentially not be implemented, even if Kosovo would act. All that remained was the implementation of the AKSHS, now Article 7 of the Basic Agreement, a matter of essential interest for Serbia and a matter that required the greatest sacrifice from Kosovo. It was no surprise that Kosovo had very little interest in advancing this dynamic.
The lesson could be that it would have been more correct to recognize the circumstances where the Facilitation has misjudged the will of the parties or one of them to reach the agreement. To say that there was an agreement where there was none, or where there was none in a formal form on which Kosovo's consent depended, only delayed the failure of the process and made it even worse. Camouflaging the true facts also avoided the need for Relief to retrace its steps and think about what to do next.
There could have been three possible options to address the situation. First, the Facilitation would have been able to say that Serbia was not ready to sign the text and suspend the signing issue. Instead, the requirement that Kosovo only sign a white paper, while Serbia would not sign, destroyed the process of negotiating an implementation-sensitive Annex and thus the conclusion of the entire text that was supposed to be the focus of meeting of Ohrid.
The formal signing could have been postponed to a signing conference scheduled for a few weeks later in Paris. In the meantime, Serbia could undergo a more intensive dialogue with the aim of offering the signature that would be required of it.
The second option would be to declare that one party was willing to sign, when the other was not very willing, and suspend the process entirely. This would mean the need to work quietly, behind the scenes in the coming weeks, to develop an instrument that both parties would accept according to an agreed formula (for example, public signature but on separate copies of the Agreement, signature formal, one with a footnote that said the signature does not imply recognition, acceptance of a side letter on the issue, etc.). If Serbia would continue to be unwilling to reconcile, it would have to accept responsibility for this result. Facilitation would then have to cease and focus on technical dialogue on issues of mutual interest.
The third option was the one chosen — to camouflage the failure so as to save the process. This would require, and it was done, a great sacrifice from Kosovo, which was losing the main benefit it had expected from a formally signed agreement. So, there would have to be a readjustment of the process after this epilogue, to ensure at least the implementation of other elements of the agreement, including those for which Kosovo had a special interest, according to a clear plan. This has not happened. Thus, the original failure reappeared only a few days after Ohrid when it became clear to Kosovo, putting the entire normalization process in jeopardy.
This also had implications for the third level of involvement, focusing on the practical steps of normalization, even if the broad goals of the German-French initiative could not be realized. The agreement provided for the review of the previous technical dialogue agreements and the acceleration of their implementation, together with the reaching of new additional agreements. However, with the failed German-French Initiative now absorbing the space that technical normalization once had, there does not seem to be much appetite to focus again on specific, sectoral advances.
Overall, then, the German-French Initiative offered a way forward without the formal recognition that seemed to be ruled out. The success of this initiative, however, had a very heavy mortgage by combining this angle of attack on normalization without recognition, with the request that Kosovo implement the AKSHS. This made the acceptance from Kosovo very weak. However, Kosovo convinced itself to accept, trying to demonstrate a constructive approach. However, the enterprise was doomed the moment the Easing allowed Serbia to remove at least one of the key incentives stemming from the Basic Agreement, which clarified that relations could now be developed on the basis of international law.
The lesson, then, is that when planning the approach to a mediation, it is important to find out carefully where there is an area of possible agreement between the parties. By mixing up the different threads of a potential deal, it moved the potential deal out of that area. Moreover, failure to admit failure did not overcome failure. Simply saying that Serbia had accepted the Basic Agreement, while not doing so in relation to Kosovo in a formal, internationally visible and legally binding manner, did not eliminate this defect. Once Kosovo would say that this is not correct and it did so in the end.
V. Correct balance of liabilities
So it was said that there were three levels of a possible agreement, each of which requires a different level of commitment from the parties (full normalization, normalization without recognition, technical agreements). However, the level of agreement would be resolved, the question of the area of possible agreement would also apply in the case of its individual elements. This means, in relation to each individual substantive obligation, there would be a need for individual negotiation and bargaining process. This could result in an obligation that satisfies the parties' common interests equally or it could be a concession by one party to an obligation traded for a concession in respect of another obligation by the other party. . Ultimately, a set of obligations may be accepted by one party because it expects to gain something more valuable from the overall agreement.
The Basic Agreement proposed by Relief contained most of the provisions of the German-German Basic Agreement from 1972. However, the Facilitation then added additional elements specific to the context of Serbia and Kosovo.
The first pair of conflicting or concurring interests had to do with the very concept of the German-French Initiative. For Kosovo, it meant accepting that recognition would not come for some time. This was somehow balanced with the determination that the relations between Kosovo and Serbia, from now on, would be developed on the basis of international law, the principles of the UN Charter, good neighborly relations, etc. For Serbia, this meant (or should have meant) exchanging the signing of a formal agreement with Kosovo without having to recognize it in order to be able to say that it had taken an important step towards normalization. This would result in the further acceleration of the EU membership dialogue.
Other possible pairs of obligations when the parties could exchange interests could be related to the recognition of mutual documents and national symbols, not opposing Kosovo's membership in international organizations and acknowledging that only Kosovo can present its 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 both parties last December, the Facility defined pairs of obligations where one would be implemented as a consequence of the implementation of the other. However, it also violated the principle of reciprocity in relation to Article 7 of the agreement, or to the issue that was once known as AKSHS.
Kosovo had to produce a draft statute under Article 7 before two-thirds of the obligations of the other agreements entered into force. Apparently, the reason for that was the lack of trust in the good will of Kosovo to fulfill this obligation, given the reluctance to implement the 2013 agreement, which had foreseen the then AKSHS.
However, this approach ignored that the pairing of natural interests that had supported Kosovo's original willingness to accept the AKSHS in 2013. This was the mutual expectation that if the AKSHS were to be done, it would result in the removal of structures parallel governance in the north of Kosovo. This aspect was actually included in Article 7 of the Basic Agreement, at least in an indirect form, regarding the financing by Serbia of the activities of the respective municipalities. But the design of the balancing pair of obligations in the Implementation Annex completely removed this link, turning the AKSHS into a unilateral commitment based on prior agreements, which Kosovo must now implement immediately.
From Kosovo's perspective, the demand for unilateral action, before most of the provisions of the Basic Agreement even came into force, was not justified. It gave him the impression that the whole undertaking of the Basic Agreement was a means of forcing him to make unilateral concessions on the single issue which presented the greatest difficulty to him. Resistance to this particular enforcement mechanism was correspondingly strong.
VI. Building personal relationships
Facilitating negotiations of this type is a complex and undoubtedly difficult process. One thing it requires is building trust in the person who is the Facilitator. Higher-level interlocutors need to feel comfortable with it and build trust.
The perspective of the Facilitator or mediator, as well as that of the parties, is different. The Facilitator will undertake this task as one of many milestones in his career. He or she will try his or her best, but that is all that can be expected from him or her. For the interlocutors delegated by the parties, the issues to be discussed are related to what they consider to be matters 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 gave them the mandate to represent them. They tend to bow to pressure from their often radical supporters, demanding a hard line.
Sometimes, the interlocutors will be experienced politicians and negotiators trained to withstand these pressures. In other cases, they may be brand new to the craft, or at least at the level of high-level, high-pressure international negotiations. The facilitator should spend a lot of time understanding them. This isn't just a matter of reading the conflict analysis his aides gave him to read on the plane on the way to a meeting. It requires authentic interest in the person in question, in the narrative and the principles on the basis of which he will make decisions. It would be redundant to say that the good mediator opens a window into the soul of the key decision makers with whom he meets, but it is not wrong to mention it.
This is especially true when a lot depends on the entirely personal decisions of one or two top leaders, as is the case in relation to Serbia and Kosovo. Both top leaders are in a position to make decisions themselves. However, they face difficult, if not turbulent, circumstances related to negotiations in their domestic arenas.
also
What went wrong in the Brussels dialogue
If it is not deeply understood how each of them will analyze a given situation, or even the proposals that the Facilitator can offer, each step taken by the Facilitator will be a step into the unknown, which risks the emergence of misunderstandings and disappointment. The fate of the Implementation Annex, which barely survived the Ohrid disaster in a heavily stripped down version, provides a good example.
In this case, there was no indication that the Facilitator was interested in his negotiating partners. Conversations were comparatively rare, always formal and relatively meaningless — a step away from establishing rapport and trust. There were no trips to Tito's former hunting lodges for long fireside talks over a weekend with the Serbian president or similar excursions to the Rugova Valley in Kosovo. There were no cases where the Facilitator, or any of the interlocutors, would informally throw some ideas or options to get out of an eventual impasse that the parties could have foreseen.
While the process was unfolding, the Facilitator's visits, momentarily matched by the presence of a senior American interlocutor, did not seem to be aimed at understanding. On the contrary, they were occasions to reinforce the demands and increase the pressure.
VII. Involvement with the parties
Beyond the failure to build rapport with the highest leadership of both parties, the Facilitation took place in a mechanical form. It initially offered a content text of the draft Basic Agreement in September of last year. It then offered an almost identical text in December, with some minor adjustments made following comments from parties, adding a compact implementation Annex package. Then, the text of the Basic Agreement was simply closed for further comments before the high-level meeting between the president and the prime minister aimed at approving the final text on February 27.
In essence, therefore, there was no actual negotiation between the parties on the substance of the agreement. The process mainly took place remotely. This approach can be used by the mediator when he knows that the parties will not engage with each other constructively. However, at some point when the text is provided by the Facilitator, one can expect direct negotiations between the parties about the document or, in rare cases, negotiations in a proximity format, where the parties do not want to meet each other directly.
Much of the Basic Agreement was of course copied from the German predecessor of 1972. However, some key provisions for Serbia and Kosovo were added. There had been some variation of the German example, and the specific provision was mysteriously avoided. Declaring the draft completed without engaging in detailed discussion with the parties about the text would risk discovering sometime later in the process that an element of the text might be unacceptable to one or the other delegation. Moreover, the balance of obligations, i.e. the likelihood that the text will be accepted by both sides, was based on the assessment or even guesswork of the Facilitator and his team, until it was tested throughout the process by him.
This was the case, in particular, of the Implementation Annex. There was no model for it from the example of the German agreement from 1972. It was the main design of Facilitation. After spending months at the tables, the Facilitator visited the capitals to hear their opinions. In fact, this happened only a week before the meeting in Ohrid where the text was to be agreed.
VIII. No surprise
The process regarding the implementation Annex has not been a negotiation at all. A relatively short meeting was held where the parties provided feedback to the Facilitator. The facilitator then left and, in a surprise move for Kosovo, brought in a heavily amended version, three times longer than the original text, the night before the meeting where it was to be approved. The process was completely non-transparent. There was no explanation for the reasons for the changes, which from Kosovo's point of view seemed to accommodate only the other side. And, as it turned out in the end, the parties did not have the opportunity to challenge the document that was supposed to serve as the basis for the one-day talks that were intended to lead to acceptance by both sides.
In the end, there were no actual negotiations on the Annex as drafted, not even on a single day, due to Serbia's declaration that it would not sign anything that would be agreed upon. Instead, Ease offered truncated versions every few minutes in an attempt to preserve something. At that time, Kosovo had little interest in facilitating the effort by accepting the provisions that it would have otherwise accepted, if the formal signing of the agreement had been offered. In any case, it seems very strange that both sides were presented with an almost entirely new document with some 18 substantive articles the day before the meeting and expected to agree on the final text within hours.
Of course, the expectation throughout the process was that the parties were under enough pressure to accept more or less whatever they were offered. But this assumption failed when one party, Serbia, did not give in to the pressure.
In general, there was very little engagement with the parties, or at least with Kosovo, creating the belief that he was a kind of traveler in an unpredictable process over which he had no control and over which he had very little influence. This process seemed to favor Serbia a lot.
The lesson may be that there should be agreement on the modality of negotiations between the parties. If there is no, or there are several rounds of talks, the contacts with Facilitation at the working level and at the high level between the rounds should be extensive and continuous, focused on exploring the positions of the parties. If the Facilitation itself is expected to present a first, consolidated text of the negotiation, then this should be made known to the parties where it came from and to what extent it summarizes the contributions of this or that party.
If the goal is to maintain trust and confidence in the negotiation process, the Facilitation process should be linear and predictable. The parties should know in advance what will be discussed, in what format and with what modalities. Under normal circumstances they would have significant influence in shaping the process, making sure both parties are comfortable with it.
IX. Hearing of the parties
The process should provide an opportunity for contributions at agreed milestones. It is key that both parties feel that their contributions are valued and that they are being heard. This also applies to the case when there are divergences regarding the technical quality of contributions from the parties. The fact that a party does not clearly and professionally express a view or position does not mean that Facilitation can ignore it. Where a submission is not well written, it is the Facilitator's job to work even harder to understand what the point is and to provide reassurance to the submitting party that their point of view is being understood. This also includes listening to nuances and identifying reluctance. Again, failure to detect an oversight or divergence early and deal with the issue on the spot simply means that the problem will re-emerge when it will be even more difficult or even impossible to address.
X. Forced negotiations no longer work
As noted, the negotiations for the Basic Agreement and the Annex were not negotiations at all in the classical sense. The texts were produced by Facilitation and either remained so or had undergone changes without any explanation. This approach apparently reflected Facilitation's feeling that the parties would never agree on anything, if only the issues were left to be discussed in the most direct form that would give them more influence in shaping the text.
This may be a reflection of the experiences that EU officials had in previous negotiations for the Balkan region. The approach from Dayton to Rambouillet was that of "directed" negotiations, where Facilitation would draft a text that would ultimately remain, unless both sides agreed to change it.
However, times have moved on from this approach of the 90s. As the enormous efforts of the EU and the US have proven, neither side could ultimately be forced to agree to the scheme developed by international actors. Serbia did not sign. Kosovo began to issue warnings because the current outcome of the talks was better understood and is now seen by some analysts as a risk to give up completely if its interests are not accommodated.
It is undoubtedly very difficult and takes a lot of patience to facilitate a process of this kind. But the recipe of only submitting a text, while expecting the parties to accept it, if necessary, under international pressure, no longer works. Efforts should be made to explain and explore, first with each party individually and then together with both parties, what issues can be addressed. If it turns out that there are issues where there is an Area of Possible Agreement, then it should be explored how this can be used for the mutual benefit of the parties.
Usually, even the broker would be reluctant to offer his text, at least until the process is advanced and ripe for such a move. The facilitator, on the other hand, would be even more reluctant and would only do so if the parties expressly requested it. Once this would happen, there would have to be rules for how the text would develop. Usually, the parties would continue to negotiate until they agreed on each individual provision, from time to time exchanging concessions as the offers progressed.
While the process can be lengthy, it makes sense. The Parties and the Facilitator will understand each other's position. The facilitator may provide examples of other cases of agreements, refer to standards that may help resolve an issue, or seek input from an outside expert. There may also be occasions and times to provide capacity building to the parties. Moreover, over time, parties can become socialized with a routine process for interacting with each other.
XI. Promises must be kept
The issue of trust in Facilitation has already been raised. Inexperienced delegations will take a long time to develop the feeling that they are not being walked through a process which, in the end, they cannot control. More experienced delegations will warn early and prevent the process from even starting. As frustrating as it may be for the Facilitator, this is actually better than proceeding for months, only to find that he has lost the trust of a party in the process, putting all imagined progress at risk.
In this particular case, many efforts were made to convince Kosovo to sign the Basic Agreement and later the implementing Annex. The connection of the Basic Agreement with the separate issue of AKSHS, later Article 7 of the Basic Agreement, made the process even more difficult. The facilitator and interlocutor from the USA, sent to ensure the acceptance of the parties, were forced to give very specific guarantees to Kosovo in an attempt to overcome this difficulty they had created themselves.
They offered strong assurances that a formal letter sent a few years earlier by then European Commission Vice President and High Representative for Foreign Affairs and Security Policy, Federica Mogherini, would protect Kosovo from the expansive interpretation of how Article 7 of the Framework Agreement will be implemented. , former AKSHS. This was reinforced by the Facilitator's own promises and pledges regarding how the charter for the mechanism would be created and what the AKSHS would ultimately NOT be.
Soon after Kosovo accepted the Basic Agreement and what was left of the Annex after the debacle in Ohrid, the Facilitator wrote to Kosovo, warning it that it might not keep the promises it made. This created a feeling of betrayal and breach of trust that the process will find difficult to recover from.
The lesson, then, is that sometimes it will be necessary to offer guarantees or even side letters to a party to the agreement in order to achieve reconciliation. However, these guarantees need to be very carefully calibrated and well thought out. In this case, with the supposed acceptance of the parties to the Basic Agreement, the Facilitator was able to understand that in practice it will be difficult to keep the promises made to Kosovo in relation to the other party, Serbia. That's why he started denying them. Disruption of the entire process from that point on is a logical consequence.
The same thing happened on the opposite side. Probably Serbia had sent some side letters of interpretations of what had and did not happen with the Relief in Ohrid. These turned out to deny the agreement, which was not signed anyway. The letters also appeared to say that Serbia reserved the right to determine which, if any, of the obligations arising from the Basic Agreement and the Annex it could enforce. While the promise made to Kosovo by the Facilitation was mainly public, these side agreements or unilateral interpretations were not visible to Kosovo. This also contributed to the mistrust.
XII. Respecting the mandate
In international negotiation practice, appointments matter. Exercising good services means helping to create the means of communication between the parties. The facilitator has a slightly more technical task to support the dialogue between the parties, under normal conditions without the mandate to offer his own suggestions. The facilitator can arrange the meetings, ensure the parties' access to the negotiation site, help the parties agree on the agenda or methodology, and help create a relaxed atmosphere. The mediator may have a slightly more active role, although he or she will also not be encouraged to present his or her own vision of the agreement to the parties. This can happen at a later stage and with the encouragement of the parties, when the positions are already clear and well understood. Finally, the conciliator may provide a report on the dispute between the parties, culminating in a proposal for resolution. However, the parties are not bound to accept the recommendation.
In this case, the mandate given by the EU is modest — Facilitation. However, the process has assumed the guise of guided mediation and even reconciliation. The facilitator offers content solutions and even final pretend texts. These are not binding on the parties. But any party that does not accept them may find itself under strong international pressure to accept them.
The facilitator, in this case, has tried to overcome the parties' possible inability to agree by giving himself the "ultimate authority to interpret" the difficult question of the application of Article 7. In practice, this may mean that it determines the result when the parties fail to do so. This concept is completely foreign to the concept of Facilitation.
Again, this move confirmed at least to the Kosovo side that it would sign for a process that it would not be able to control in the end. It was a specific process related only to Article 7, that is, focused only on one issue that seemed to go against the interest of Kosovo.
The same thing happened later, when the Facilitator proposed a methodology according to which, in the end, he would draft the statute for the mechanization of Article 7. The parties would be able to register their objections, but this would ultimately not changed the final result and which the supporting states could impose through pressure. Again, rather than waiting for the process to develop in such a way as to give legitimacy to an Article 7 outcome that Kosovo had not accepted, jumping off the slow moving train seems to be the best solution.
XIII. Dedicated facilitation or mediation
Serbia would have been able to enter the Brussels dialogue with the fear of being faced with what is known as "committed mediation" or in this case alleged facilitation. Finally, the EU and the USA in the form of NATO had launched an armed campaign against the former Yugoslavia, essentially Serbia then, with the goal of liberating Kosovo from deep repression.
A dedicated mediator is recognized by both parties as an ally of only one of them. For example, when the US mediates in the Middle East, it is clearly a strong ally of Israel. Everyone knows that the US will never allow a deal that goes against Israel's fundamental interests. However, the US is an acceptable mediator, because the expectation is that Washington will be the only power that can convince Israel to accept a balanced agreement, if it emerges from the process.
In this case, the EU had its own interests at stake, although not as expected until a year or two ago. Due to the crisis in Ukraine, there was suddenly an overwhelming interest in seducing Serbia from the West, in order not to allow the stranglehold of the Russian Federation to slip. The means to achieve this was the lure of membership. However, comprehensive normalization with Kosovo in a legally binding form is a requirement that Serbia must fulfill as part of the criteria to be met for membership. The failure to recognize Kosovo would, or should, block the hope for EU membership.
This fact should normally be expected to provide an important advantage for Kosovo. Without its agreement, comprehensive normalization could not be achieved, excluding EU membership for Serbia. However, this power suddenly turned into an obligation.
The EU, with the strong support of the USA, returned to Kosovo demanding that it pave the way towards normalization, bearing in mind the changed situation with the war in Ukraine. This pressure meant that Kosovo's main allies from one minute to the next turned into dedicated mediators who favored the other side. Suddenly, Kosovo became the obstacle in the process, not Serbia, and Kosovo would have to make major concessions in order to remove this obstacle.
The committed mediator or Facilitator can share the final red lines with either party. However, if mediation is to be successful, then the dedicated Facilitator would have to work much harder to convince the party who feels sidelined by this action that the process and outcome will nevertheless be fair and balanced. This means that the argument used by the USA and the EU that Kosovo "has not understood" the general geostrategic game focused on capturing Serbia from the West, was fundamentally wrong. This line of argumentation would confirm to Kosovo that this game has turned against it, aiming for a result in favor of Serbia and sacrificing the interests of Kosovo. Abandoning or shifting the international focus from normalization negotiations to crisis management could be the only option to avoid an even worse outcome.
XIV. Pressure before analysis
Of course, it is possible for Facilitation, or even the countries that support the Facilitation process, to increase the cost that must be paid for one party, if this rejects the agreement. This is known as "shaping the negotiation environment"—a technique that is applied in relation to so-called "spoilers" (spoiler) in international negotiations. This means that Facilitation sets powerful proponents in motion to weaken the opposing party's position.
Kosovo's key allies and traditional friends, the so-called "Quint", consisting of the USA, Great Britain, Germany, France and Italy, have all moved away from Kosovo's position and have clearly aligned themselves with the EU and Facilitation. As long as they could have private opinions about the quality and competence of the Brussels team, now this does not lead me to Kandar. What is increasingly viewed as an irrational and obstructive action by Kosovo, has polarized the positions. Quinti is acting as a united front to bring the deviant party back into line.
In this situation, analyzing the reasons for what is seen as an obstacle should usually be the right step. If one party in the negotiations feels pushed to leave the process or risk delaying the process, it seems to take actions elsewhere (say in the north of Kosovo), this should prompt the analysis of these actions. In this case, it is hard to believe that the decision to place the mayors in their offices in the northern municipalities was meant to directly hit the negotiations in Brussels. Kosovo estimated that Serbia should not be rewarded for choosing to boycott the municipal elections. Instead, the legal process would have to continue, despite the fact that the elected presidents had attracted a minimal number of voters due to the boycott.
However, the question that Facilitation and the supporting states should be asking should be this: Why did Kosovo take the action in the north, if it could have foreseen that it would destabilize the normalization process and jeopardize friendly relations with key allies? Normalization should ultimately serve Kosovo's key interests, and advancement, not suppression, should be the core goal.
Apparently the answer is that Kosovo had the feeling that the negotiations for normalization had turned into something that it could no longer control and that it was moving towards an end result that it would never be able to accept. Facilitation was determined to continue with the process, despite Kosovo's objections, with growing international impatience and pressure. It would have been clear to the government that continuing the process from Facilitation to the end would cross Kosovo's red lines. So, it would be better to suspend the process once before making new concessions that are required of Kosovo due to the great international pressure that leads to inevitable failure.
XV. Early exhaustive sanctions
The problem for supporters of the EU process is that virtually the entire arsenal of pressure measures has already been applied in relation to Kosovo's allegedly reckless behavior. The EU and the USA have warned the campaign to give up their position to support Kosovo in the international arena. Isolation will manifest itself by rejecting gold-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 approved by the EU. Once these are directed against the government, not the population itself (visa liberalization has not yet been suspended).
The US has already exhausted the last tool in its arsenal, which was regime change. The USA arranged the fall of the coalition government of the elected Prime Minister Albin Kurti as early as March 2020, a couple of months after taking office. Coincidence or not, this is a sign of the role of international actors in Kosovo, so much so that this soft coup is not even denied by the authors or much discussed among international friends of Kosovo (or even in Kosovo itself). It's just a fact of life. The result had been counterproductive, however. In the following elections, Albin Kurti returned to power with an even larger majority, which allowed him to govern without major involvement of other parties.
This has led to a feeling within the current government that it may be quite immune to measures of this kind. If a fall of the government were to be arranged and there were new elections now, the chances are that Prime Minister Kurti would return with an even bigger majority. The popular spirit of resistance to what is seen as international violence is going in that direction and is being fed instead of being overcome by the international measures implemented so far. It is not clear whether new "measures" that would hit the population more generally would reverse or strengthen this trend. However, Kosovo may think it can count on the fact that allies would not want to see the country destabilized by sanctions, ultimately forcing them to rebuild what they have destroyed.
Of course, it is true that the current situation will not resolve itself. Both sides, Serbia and Kosovo, must escalate the situation. There is a risk that the task of managing the crisis in relation to the north will be intertwined with the normalization process. For example, again, the action related to the famous AKSHS, now Article 7, can be included among the steps to be taken for de-escalation. Serbia requires this action before lifting the ban it has placed on local Serbs from participating in new municipal elections.
also
Serwer: It is difficult to make progress in the dialogue if there is a lack of political will from Serbia
This again could reflect a miscalculation of the balance of obligations required for a working agreement, rather than carrying on as before, the EU and its supporters will need to restore a sense of balance and correctness in the normalization process, bearing in mind the lessons mentioned above. However, international patience can wear thin, and regardless of how justified the criticism of one side or the other, this means that the sides must be heard. A new adjustment will be needed, given the changed balance of interests resulting from Serbia's failure to formally sign the Basic Agreement and the Annex. Punishment and punishment will not work. On the contrary, the prediction by many that normalization will collapse before the end of the summer is likely to be fulfilled.
Translated by: ©Flaka Surroi