Slobodan Antonić

KOSOVO AS AN ASYMETRICAL CONDOMINIUM

Condominium is division of sovereignty over a territory by two States. The author presents a model whereby the Kosovo issue could be resolved by the establishment of a condominium over Kosovo by Serbia and EU. It would be called asymmetrical condominium because EU is not a State. Serbia and EU would jointly appoint a high representative in Kosovo. The citizens of Kosovo might opt to have a Serbian citizenship along with the citizenship of the condominium. They could also choose to be a part of the Serbian education, health-care or social system and pay taxes to Serbia . Serbia and Kosovo would be joining EU separately. Kosovo's final status would be resolved before Kosovo joins EU.

I was recently admonished that I can only sing about Kosovo and not make rational judgments. That is perhaps a little harsh. There is a study on the Kosovo problem from 1999, in which I tried to demonstrate what a rational approach to this painful issue should look like (1). But, that perhaps was not enough. A rational approach in our midst is often qualified as betraying Serbian interests. Certain emotions in my texts (2) are just a response to such “rationality”. But let us look at what kind of rational model for the resolution of the Kosovo issue might be offered in the present-day circumstances. The model I think is worth consideration I shall call asymmetrical condominium.

As far as I know, the idea of resolving the Kosovo issue through some sort of condominium was first advanced by Dušan Proroković. Two months before he became the State Secretary in the Ministry of Kosovo and Metohija, Proroković participated in a meeting organized by the Forum for the National Strategy (Kragujevac, 16 March 2007). The topic of the meeting was “How to resolve the problem of Kosovo and Metohija”. Speaking of what Belgrade might propose by way of a solution, Proroković said that “legal and political framework within which the district of Brčko was functioning should be given careful consideration” (3). In the sense of sovereignty, that district is both part of Republika Srpska and of the Federation of Bosnia and Herzegovina . The residents of Brčko may chose whether to take the citizenship of Republika Srpska or of the Federation and whether they will vote in the elections as citizens of one or the other entity.

“Something similar may be a solution for Kosovo and Metohija”, Proroković said at that time. “We would have the entity institutions in Priština and national institutions in Belgrade . Each citizen of Kosovo could make a personal choice: whether he wanted to be in the legal and political system of Priština or Belgrade . Whether he wanted his child to attend school with Priština curricula or the schools financed by Belgrade in accordance with our national plans and curricula? Whether he wanted to exercise his franchise in the elections for the Parliament of Kosovo or in the elections for the Parliament of the Republic of Serbia ?”

According to Proroković, compared to Brcko the difference would be that this district was unitary whereby Kosovo would be decentralized as much as possible. “Through decentralization, a huge set of powers would be transferred from the Provincial to the local level. Here I mean also local security and investment programs (...) to enable a balanced development of both communities and to avoid the possibility of out-voting.”

This solution, Proroković opines, would satisfy the aspirations of both sides: the Albanians would be totally independent from Belgrade while Serbia would have a formal sovereignty over Kosovo i.e. “we would be able to say that Kosovo remained an integral part of Serbia ”.

When Proroković advanced this proposal, I found it very interesting. I expected, particularly after Proroković became the State Secretary for Kosovo that this solution would emerge as one of Serbian proposals at the negotiating table. Nevertheless, this model has never re-surfaced in public. Perhaps it was mentioned in diplomatic and other consultations. But never to a point where it was publicly addressed.

I think that it is a pity. To me, the proposal looks like a fundamentally good compromise. It may satisfy both sides, it corresponds to the situation on the ground and appears sustainable. Of course, the proposal is not fully developed. I will therefore try to develop it a little bit further so that we might together have a closer look at what it offers.

There is a difference between this model for the resolution of the status of Kosovo compared to the model of Brčko which is very important from the political and legal point of view. In certain elements, Brčko is a kind of condominium (4). However, in the case of condominium, there are two sides, two sovereign states sharing sovereignty and power over a territory (along with the residents of the condominium). In the case of district of Brčko, the two ideal co-owners are Republika Srpska and the Federation of Bosnia and Herzegovina . In the case of Kosovo, clearly Serbia would be one of the co-owners and co-rulers. The question is who would be the other.

Under Proroković's proposal, the other partner of Belgrade would be Priština, i.e. Kosovo entity. If Kosovo, according to his analogy, corresponds to Brčko, it cannot at the same time be both Brčko and the Federation, district and the entity, a part and a whole. Also, if the Serbs and Kosovo Albanians were parts of separate State/legal systems, if they had their own totally separate institutions, if the Kosovo Serbs voted only for Serb institutions and the Kosovo Albanians only for their provincial institutions, I am afraid that the Albanian part of Kosovo would actually be some sort of a separate state/legal body. That corpus separatum would be similar to former South African Bantustans. I fear that it would be too much reminiscent of the abhorrent institute of apartheid, which hardly anyone in the international community could accept.

So if we seek to keep analogy with Brčko, it is necessary to find a State with which Serbia could establish condominium over Kosovo. The first that comes to mind, primarily for ethnic reasons, is Albania. However, so far Albania kept off the Kosovo issue (or was kept off, whichever). Her involvement in this phase of the Kosovo crisis would hardly be acceptable by anyone in the international community. So, Albania is not the partner. Who could possibly be? The next most logical choice which to me does not look unacceptable is perhaps the European Union.

EU is not a State – that is why the solution is called asymmetrical condominium . On the other hand, EU is a subject of international law and it is fully involved in the resolution of the Kosovo issue. Formally, it could assume a share of sovereignty over Kosovo. All current UNMIK competencies could be transferred to it. UN Secretary-General Special Representative would become EU High Representative, with the same authority (it was EU that appointed all heads of UNMIK). The only difference would be that from now on it would have to seek Belgrade 's approval for those appointments. NATO troops would remain to keep peace, and the Kosovo Protection Corpse would be maintained at the same level.

Also, the presence of the Serbian State in Kosovo, as it is today, could be legalized i.e. formalized. The decentralization of Kosovo, which would not necessarily imply the creation of separate entities, would formally protect the existing Serbian municipalities. Functionally, Kosovo would be set up as a consocial democracy, where the rights of ethnic communities would enjoy powerful protection. Separate agreements would regulate the property and debt issues. I would like to point out that these issues would be subject to special negotiations between Serbia and EU. However, with the accepted state/legal framework, with an undisputed status of Kosovo, these negotiations would not be fruitless as they are now.

The relationship between Kosovo institutions and EU would depend on the Union . As a European half-dominion, i.e. European province, Kosovo could send its representatives to the European Parliament. In that case, the Brčko formula could be applied. The Serbs, i.e. the residents of Kosovo that opt for the Serbian citizenship would vote in the general Parliamentary elections in Belgrade. The Albanians, i.e. the residents of Kosovo who opt for the citizenship of the European dominion would vote in the elections for the Parliament in Strasbourg . It does not mean that the Kosovo Serbs would not be represented in the European Parliament. They would, in line with the principles of consensual democracy, have their quota on the provincial list. In addition, the Kosovo Albanians could have their quota on the Kosovo list. However, that quota would be exactly the same to the Serb quota on the Strasbourg list – exactly in line with the principles of consensual diplomacy.

The problem to the Serb side regarding this solution would probably be that the Kosovo as a co-ruler would be a powerful partner. Serbia would have a partner on which it would be dependant in many respects, most of all in one – for wanting to unite with it. Moreover, it could even happen that both processes – the protection of Serb interests in Kosovo and EU accession – end up unsuccessfully exactly due to Kosovo. Corruption possibilities of the Albanian community in Kosovo are huge. It is realistic to assume that they will continue to be used to satisfy Albanian interests. The only thing is that the main address instead of New York and Washington would be Strasbourg and Brussels .

On the other side, there are good sides to this solution. Only a powerful partner can truly maintain some kind of peace in Kosovo including basic protection of local Serbs. It would be better to have NATO and European bureaucrats there instead of UCK and the police of independent Kosovo. Also, outwitting the bureaucracy in Brussels and Strasbourg is not going to easy. On the other hand, it would have at least theoretical chance of success compared to any attempt to ensure Serb interests with the bureaucracy of an “Independent State of Kosovo”.

Finally, there is a question of what would happen after Serbia 's possible accession to EU. Would Kosovo gain independence in that case? First of all, that process would last at least some ten years for Serbia . Even then, it is not likely that Kosovo will be ready to join EU. At best, it will need another ten years of preparations for European integration. Throughout that time the condominium of Serbia and EU over Kosovo would be maintained. Only Kosovo's accession to EU would open up the question of its status. But then, Serbia would be in a much favorable position than it is today. She would already be a part of EU.

This would help avoid a trap that is today placed before Serbia which is asked to recognize the independence of Kosovo in return for a vague prospect that at one point it will join EU. No, this is much better. First, Serbia joins EU and then we discuss Kosovo's independence. Actually, only when Kosovo is developed enough that this question merits to be placed on the agenda.

At the moment when I am completing this text, the breaking news on TV is the proposal of Koštunica and Tadić to resolve the status of Kosovo in line with the Hong Kong model. I see this as a good response to the proposal that the Kosovo issue be resolved according to the model of two German States. Whether this response will remain at the level of tactical maneuvering or it will be something more – remains to be seen. It should also be recalled that the Serbian side, before this model, proposed the model of Southern Tyrol and Aland Islands. If we add a model of the district of Brčko, i.e. asymmetrical condominium – as it appears in this developed form – one can hardly say that the Serbian side was stubborn, uncooperative or even lacking imagination in seeking to offer a fair compromise for Kosovo. If no compromise is reached, it is not the Serbian side that is to be blamed.

The author is an associate professor at the Faculty of Philosophy in Belgrade

Footnotes:

1. Slobodan Antonić, “Kosovo and democratic Serbia ”,New Serbian political thought” , year VI (1999), No. 3-4, pg. 131-169 (http :// www . komunikacija . org . yu / komunikacija / casopisi / nspm /3-4/ d 007/ show _ html ? stdlang = ser _ lat )

2. “One day”, Politika, 13 February 2007, pg. 11, “Now we know”, Politika, 12 April 2007, pg. 11,

3. See: NSPM Analyses, year. 3, No. 1–2, pg. 8–10.

4. Primarily, due to the fact that his theory belongs to the theory of both entities. Nevertheless, that condominium has always been more formal than real, since the district's administration was independent both from Sarajevo and Banjaluka. In the Brcko Final Award on the district of Brčko of 5 March 1999, reference to the word condominium is made twice. Both times it is placed under inverted commas (http://www.ohr.int/ohr-offices/brcko/default.asp?content_id=5358#1). In point of fact, according to the official interpretation of the Office of the High Representative, Brčko is not a condominium, but “a district with local self-government under the sovereignty of Bosnia and Herzegovina. (...) The term ‘condominium' from the Final Award refers to the decision not to undermine territorial ratio between the entities (51% : 49%) established under the Dayton Accords. In line with the Final Award, the territory of the former municipality of Brčko belongs to both entities, but in the next sentence it is emphasized that ‘ Neither entity, however, will exercise any authority within the boundaries of the District, which will administer the area as one unitary government '. Both entities delegated ‘… all their powers…'   to the new District (Final Award, paras 9–11). The Final Award required the creation of a single, multi-ethnic Government of the District, independent judiciary and the Assembly authorized to adopt a new set of laws for the Brčko district. The entity's laws will be applied in the District only until the new laws of the District are adopted and permanently replace them.” (http://www.ohr.int/print/?content_id=29850 )

Objavljeno u: In Press, No. 2, November 2007, Brussels