2015 Serbia Kosovo

review of central and east european law
40 (2015) 285-319
brill.com/rela
The Serbia-Kosovo Agreements:

An eu Success Story?
Florian Bieber
Centre for Southeast European Studies, University of Graz, Graz, Austria
<florian.bieber@uni-graz>
Abstract
The agreements between Serbia and Kosovo—mediated by the eu since 2011—consti-

tute a major step toward the normalization of relations between the two countries
following Kosovo’s declaration of independence in 2008. They are also a test case for
eu mediation and its ability to utilize the prospect of accession to address protracted
conflicts. This article argues that the eu used creative ambiguity, as well direct pres-
sure, in facilitating a number of agreements between Serbia and Kosovo. While this
approach has yielded concrete results, it also bears risks, as the process was top-down
and, also, left considerable room for divergent and conflicting interpretations of key
provisions. This article will trace the negotiations and identify the particular features
of the process.
Keywords
conflict resolution – European Union – interethnic relations – Kosovo – Serbia
1 Introduction
The conflict in Kosovo and between Kosovan Albanians and Serbs over the
status of the province (and now a country) has been a defining feature of deep
tensions in the region: first in Yugoslavia and, subsequently, in Serbia and
Kosovo. These tensions preceded the conflicts for independence (and terri-
tory) in both Croatia and in Bosnia and Herzegovina by nearly a decade and
have continued to linger for almost two decades since the end of the war in
Bosnia in 1995. While tensions remain between Serbia and Croatia and within
Bosnia and Herzegovina, their international status is undisputed in the region
© koninklijke brill nv, leiden, 2015 | doi 10.1163/15730352-04003008
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286 Bieber
(and beyond), and their borders are clear. The emergence of Kosovo as an
independent country has been incomparably more difficult and challenging
than that of the other states emerging from the former Yugoslavia. Not having
been a republic in Socialist Yugoslavia denied it the possibility to claim inde-
pendence on the grounds of the rules laid out by the Badinter Arbitration
Commission1 in 1991–1992 and based on the premise that Yugoslavia, as a state,
had dissolved and that its constituent units would become its successor
states.2 This transfer of the principle of uti possidetis from the post-colonial
context to Yugoslavia and the Soviet Union was not without its critics—among
them political scientists and legal scholars3—but it did prevail. No newly
crafted territorial unit received international recognition, and the two entities
of Bosnia and Herzegovina—the Federation of Bosnia and Herzegovina and
Republika Srpska—only were recognized as units of a larger state. In fact, the
un Security Council explicitly rejected the independence of Republika Srpska
during the war.4
Kosovo’s claim for independence was first made in 1991, following the model
of Slovenia and Croatia, including an informal referendum.5 Unlike the for-
mer Yugoslav republics, Kosovo received no more international recognition or
acceptance than other comparable state projects that lacked the institutions
and legitimacy of a republic.6 Yet the war in 1998–1999 and subsequent inter-
national administration made independence the only plausible option for
Kosovo. Neither the international administrators and mediators nor, for that
1 The Badinter Arbitration Commission’s opinions 1–3 are reproduced in 3(1) European
Journal of International Law (ejil) (1992), 182ff., available at <http://ejil.oxfordjournals.org/
content/3/1/178.full.pdf+html>; and opinions 4–10 are in 4(1) ejil (1993), 74ff., available at
<http://ejil.oxfordjournals.org/content/4/1/66.full.pdf+html>.
2 Enver Hasani, “Uti Possidetis Juris: From Rome to Kosovo”, 27(2) The Fletcher Forum of World
Affairs (2003), 85–97, at 92–3.
3 Peter Radan, The Break-up of Yugoslavia and International Law (Routledge, London, 2002);
Steven R. Ratner, “Drawing a Better Line: Uti Possidetis and the Borders of New States”,
90(4) The American Journal of International Law (1996), 590–624; and Hurst Hannum, “Self-
Determination, Yugoslavia, and Europe: Old Wine in New Bottles”, 3(1) Transnational Law
and Contemporary Problems (1993), 58–69.
4 un Security Council, Resolution (16 November 1992) No.787, §3, available at <http://daccess
-dds-ny.un.org/doc/UNDOC/GEN/N92/723/03/IMG/N9272303.pdf?OpenElement>.
5 Wolfgang Petritsch, Karl Kaser, and Robert Pichler, Kosovo. Kosova. Mythen, Daten, Fakten
(Wieser Verlag, Klagenfurt, 1999), 189–190.
6 Be they in the former Yugoslavia, such as Republika Srpska, Krajina in Croatia, or Ilirida in
Macedonia, or their post-Soviet counterparts, such as Transnistria, South Osetiia, or
Abkhaziia. See Nina Caspersen, Unrecognized States: The Struggle for Sovereignty in the
Modern International System (Polity Press, London, 2011).
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The Serbia-kosovo Agreements 287
matter, Serbia (or the Federal Republic of Yugoslavia) made any effort to offer
a valid alternative. Adem Demaçi’s idea of Balkania, some form of loose federa-
tion, was never seriously considered in Kosovo or Serbia. While, Kosovo’s inde-
pendence (or enhanced status within Yugoslavia until the late 1980s) was the
goal of the national movement of Kosovan Albanians from the early 1980s, this
goal was not shared by international mediators. Rather, as noted herein above,
it arose due to the absence of any plausible alternative. This ‘independence by
default’ also was striking because of the absence of a formal referendum7 on
independence, making Kosovo the only territory of former Yugoslavia—
together with Serbia—that did not vote on its status between 1991 and 2006 in
an internationally recognized referendum. Yet, its independence was probably
the least contested within the country itself (i.e., Kosovo) and, also, was better
prepared in advance of the declaration due to the Ahtisaari plan8 than in any
other successor state to the former Yugoslavia. In fact, the internationally
imposed institutional hurdles and requirements were greater than the con-
ditions for international recognition required from either Montenegro in
2006 or the other republics in 1991–1992. However, the very process of
Kosovo’s independence—not based on uti possidetis—and the opposition of
Serbia, from which it declared independence, meant that the process was con-
tested and difficult. In addition, it was further complicated by renewed ten-
sions between Russia and Western powers. While the non-recognition of
Kosovo often has been framed in the context of international law, domestic
political considerations often carried greater weight. It is, thus, unsurprising
that four out of the five countries9 among the eu member states not recogniz-
ing Kosovo either have real or imagined secessionist conflicts of their own.
7 This informal referendum was held in 1991, organized by the Kosovo ‘parallel institutions’
which were established in 1990–1991 by Kosovo Albanian parties following Serbia’s abolition
of Kosovo’s autonomy in 1989. More than 99 percent of those voting supported indepen-
dence, but the referendum result was not internationally recognized. Miranda Vickers,
Between Serb and Albanian: A History of Kosovo (Columbia University Press, New York, ny,
1998), 251; On the establishment and functioning of the parallel institutions see Howard
Clark, Civil Resistance in Kosovo (Pluto Press, London, Sterling, va, 2000), 95–119; and Vickers,
op.cit. supra, 259–264.
8 United Nations Office of the Special Envoy for Kosovo, “Comprehensive Proposal for the
Kosovo Status Settlement” (26 March 2007) S/2007/168/Add.1, available at <http://www
.unosek.org/unosek/en/statusproposal.html>.
9 Cyprus, Greece, Romania, Slovakia, and Spain. For more on the background of the countries
not recognizing Kosovo’s independence, see Kosovo Foundation for Open Society and British
Council, “Kosovo Calling” (2012), available at <http://kfos.org/kosovo-calling-position-papers
-on-kosovos-relation-with-eu-and-regional-non-recognising-countries/>.
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288 Bieber
Since Kosovo declared its independence in 2008, the number of countries

recognizing it has gradually increased. By 2015, some 112 countries had recog-
nized Kosovo, with the majority of them doing so in 2008–2009, followed by a
steady trickle that appears unperturbed by either Serbia’s request to the un
General Assembly, in the fall of 2008,10 for an advisory opinion from the
International Court of Justice (icj) or the opinion itself rendered by the icj in
mid-2010.11 Nevertheless, membership in key international organizations, in
particular in the un, has been elusive: not only does Serbia refuse to recognize
Kosovo but, also, key un Security Council members (Russia and China) like-
wise have opposed its diplomatic recognition.
A key obstacle (albeit not the only one) for Kosovo’s independence was
Serbia’s rejection of any status for Kosovo more than autonomy within Serbia.
This position was held by subsequent Serbian governments after 2000 and
enshrined in the 2006 Serbian Constitution.12 Serbia continued to adhere to
this policy after rejecting the 2007 Ahtisaari plan—proposing conditional
independence for Kosovo—and Kosovo’s 2008 declaration of independence.
While key Western countries took a position different from that of Serbia on
Kosovo’s independence, there was a reluctance among a number of those
countries to push Serbia to accept independence for fear (real or imaginary) of
derailing Serbia’s fragile democratization process after the fall of Milošević in
10 General Assembly, Press Release, “Backing Request by Serbia, General Assembly Decides
to Seek International Court of Justice Ruling on Legality of Kosovo’s Independence”
(8 October 2008) ga/10764, available at <http://www.un.org/press/en/2008/ga10764.doc
.htm>.
11 International Court of Justice, “Accordance with International Law of the Unilateral
Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion)”
(22 July 2010), icj Reports (2010), 403, available at <http://www.icj-cij.org/docket/index.php?
p1=3&p2=4&case=141&p3=4>. See, also, “Who Recognized Kosova [sic] as an Independent
State?” (n.d.), available at <http://www.kosovothanksyou.com/>.
12 Ustav Rеpublikе Srbijе, Sluzhbeni glasnik Rеpublikе Srbijе (2006) No.98. The Constitution
declares in its preamble that:
“Considering also that the Province of Kosovo and Metohija is an integral part of
the territory of Serbia, that it has the status of a substantial autonomy within the
sovereign state of Serbia and that from such status of the Province of Kosovo and
Metohija follow constitutional obligations of all state bodies to uphold and protect the
state interests of Serbia in Kosovo and Metohija in all internal and foreign political
relations.”
Translation into English from the Serbian Parliament (n.d.), available at <http://www
.parlament.gov.rs/upload/documents/Constitution_%20of_Serbia_pdf.pdf>.
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2000. Successive Serbian governments, since 2000, have failed to confront the
legacy of the wars of the 1990s and to address the question of wartime respon-
sibility, allowing for a more nuanced approach towards Kosovo.
2 International Mediation over Kosovo
The eu-led negotiations between Serbia and Kosovo since 2011—resulting in

the First Agreement on Principles, known as the 2013 Brussels Agreement13—
took place at the end of multiple international attempts to mediate a settle-
ment over Kosovo, first at Rambouillet and, later, through the final status talks
under un auspices presided over by former Finnish President Martti Ahtisaari.14
The challenge of both of those efforts was the rejection of the agreements by
the Serbian government. While the Milošević government never seriously
engaged in negotiations in Paris in the winter of 1999,15 his democratic succes-
sors did partake in the status talks in 2006–2007. However, the Serbian govern-
ment chose not to support the conclusion of Ahtisaari’s report to the un
Secretary General which proposed “conditional independence” for Kosovo. In
this way, the Ahtisaari report stood in contrast to Serbia’s position which
rejected any proposal that would have seen Kosovo become independent. The
main substance of Ahtisaari’s “Comprehensive Proposal” addressed an inter-
nal political and constitutional arrangement for Kosovo.16 It has been argued
that the self-government foreseen for Serbs in Kosovo—as well as the protec-
tion of Serbian Orthodox churches and monasteries—did reflect the media-
tors’ efforts to address concerns of the Serb community and of Serbia.17
13 “First Agreement of Principles Governing the Normalization of Relations” (19 April 2013),
available at <http://www.rts.rs/upload/storyBoxFileData/2013/04/20/3224318/Originalni%
20tekst%20Predloga%20sporazuma.pdf>.
14 They also include notable absences. Except for the 1991 Carrington Plan for Yugoslavia, no
international mediation between 1991 and 1995 explicitly dealt with Kosovo. The ignoring
of Kosovo—with the goal of facilitating a settlement in Croatia and Bosnia and
Herzegovina—contributed to the radicalization among Kosovan Albanians and the rise
of the Kosovo Liberation Army. See Marc Weller, Contested Statehood: Kosovo’s Struggle for
Independence (Oxford University Press, Oxford, 2009), 41–54.
15 Petritsch, Kaser, and Pichler, op.cit. note 5, 278–351.
16 “Comprehensive Proposal for the Kosovo Status Settlement”, op.cit. note 8.
17 James Ker-Linday, Kosovo: The Path to Contested Statehood in the Balkans (ib Tauris,
London, 2009); and Weller, op.cit. note 14, 191–219.
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290 Bieber
Yet, the 2007 Ahtisaari plan was rejected not only by Serbia but, also, by
many Serbs in Kosovo; in particular by Serbs in the northern municipalities
adjacent to Serbia. The main reason for the rejection among Serbs was that it
was seen as ushering in independence for Kosovo.18 Thus, the north of
Kosovo—centered on the northern half of the city of Mitrovica—failed to
implement the plan and, instead, remained under direct Serbian control.
While the plan had offered a degree of local self-government, including
enhanced competences to North Mitrovica, the status quo best suited the elites
as well as most Serb citizens in northern Kosovo. Furthermore, the Ahtisaari
plan was largely viewed as being synonymous with independence, whereas the
details outlining the rights of Serbs in Kosovo were neglected and remained
largely unknown to Serbs in Kosovo.19 This rejection involved a complicated
combination of fear and resentment of Albanian domination in Kosovo, aver-
sion to Kosovo statehood, and practical advantages connected with the Serbian
state presence in Kosovo (e.g., employment in Serbian state institutions was at
considerably higher salaries than those offered by Kosovan institutions and
the de facto tax-free status of the region). The attitudes were different among
Serbs living south of the Ibar River, which separates the north from the rest of
Kosovo. Not living in geographically contiguous regions bordering Serbia,
these communities were more vulnerable and, also, more connected to
Kosovan Albanian society (albeit only precariously so). Furthermore, there
were few incidents in the south, where more than two-thirds of Serbs live. The
Ahtisaari plan offered the establishment of new Serb-majority municipalities
in the south that would have given Serbs a greater sense of demographic cer-
tainty and an ability to hand out jobs. In addition, and despite independence,
Serbian institutions have continued to operate in addition to the local admin-
istration working within the Kosovo framework.
The local context did not change significantly prior to eu mediation in 2011
and rather settled into an uneasy status quo. While many Serbs in the south
participated in the 2010 parliamentary elections, the elections were boycotted
in the north.20
18 Steve Crabtree, “Kosovo’s Albanians, Serbs Foresee No Compromises,” Gallup (23 May
2007), available at <http://www.gallup.com/poll/27661/kosovos-albanians-serbs-foresee
-compromises.aspx>.
19 Balkan Insight, “Kosovo Press Review” (27 April 2014), available at <http://www.balkanin
sight.com/en/article/kosovo-press-review-april-27-2012>.
20 European Union Election Expert Mission to Kosovo, Final Report (25 January 2011), 15–17,
available at <http://eeas.europa.eu/delegations/kosovo/documents/page_content/110125
_report_eu_eem_kosovo_2010_en.pdf>.
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3 eu Mediation and State-Building
The European Union has a considerable record of mediating in former

Yugoslavia, although not always marked by success. In the 1990s, its efforts in the
region largely failed—being characterized by a lack of eu instruments, a lack of
unity, and a lack of enforcement mechanisms and experience.21 It was only once
the eu launched the Stabilization and Association Process22 in 2000 that its fur-
ther efforts in the region became embedded in the larger question of eu enlarge-
ment. Even if membership often seemed remote to many in the region, it could
become an incentive in the mediation process that had been impossible previ-
ously. Yet, it also created tensions between the more pragmatic considerations
of conflict resolution and the more stringent requirements for eu accession.
Thus, the State Union of Serbia and Montenegro was established under eu aus-
pices in 2002–2003 to both settle the dispute over the joint state between Serbia
and Montenegro and to postpone the status question of Kosovo.23 However, the
state union which it created lacked the institutional resources necessary to
engage effectively with the eu in accession discussions. For this reason, by early
2006, the European Commission had adopted a twin-track approach of negoti-
ating with Serbia and Montenegro separately and, thus, undermining the state
which the eu had helped to establish.24 Attempts to mediate in Bosnia and
Herzegovina met with even less success. The eu usually acted in concert with
the us, especially before 2003–2004. The efforts to reform the police failed under
the auspices of the eu and the High Representative,25 and the second attempt
21 See Josip Glaurdic, The Hour of Europe: Western Powers and the Breakup of Yugoslavia (Yale
University Press, New Haven, ct, 2011); and Richard Caplan, Europe and the Recognition of
New States in Yugoslavia (Cambridge University Press, Cambridge, 2007).
22 “Stabilisation and Association Process (sap)” (22 April 2015), available at <http://ec
.europa.eu/agriculture/enlargement/sap/index_en.htm>.
23 un Security Council Resolution (10 June 1999) No.1244 (available at <http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/N99/172/89/PDF/N9917289.pdf?OpenElement>) linked the
status of Kosovo to the Federal Republic of Yugoslavia (fry) and, even though Serbia
could have been designated Yugoslavia’s legal successor, the eu feared that a dissolution
of the fry would place Kosovo prematurely on the agenda. It was the riots in Kosovo in
2004 and the apparent reluctance of international officials to openly endorse indepen-
dence prior to the riots (including the un policy of “standards before status”) that forced
the status of Kosovo onto the international agenda.
24 Florian Bieber, “Building Impossible States? State-Building Strategies and eu Membership
in the Western Balkans”, 63(10) Europe-Asia Studies (2012), 1783–1802.
25 Daniel Lindvall, The Limits of the European Vision in Bosnia and Herzegovina (PhD thesis,
University of Stockholm, 2009).
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292 Bieber
at constitutional reform (and the first initiated by the eu) also resulted in a
deadlock.26 These obstacles can be grouped into three categories:
First, while eu integration could have offered an incentive for parties to seek a
compromise, the prospect of membership remained remote (as highlighted
above). This meant that the reward was seen as being negligible in comparison
with apparent size of the trade-off sought. The eu also failed to offer tangible
interim measures to compensate for the distant nature of membership. Thus,
parties often could not agree upon a compromise (Bosnia and Herzegovina) or
sabotaged existing agreements (Serbia and Montenegro).
Second, the nature of symbolically charged statehood issues gives them
weight and a level of difficulty that to many cannot be overcome by the more
mundane offer of eu accession. This means, in practice, that political actors
shy away from compromise for the sake of being accused of “treason” or “sell-
ing out” by political opponents and, also, fear the loss of electoral support.
Third, the combination of eu conflict resolution and eu accession policy has
empowered the ability of the eu to resolve major conflicts in potential eu mem-
bers. Yet, on the other hand, as outlined above, it resulted at times in mixed
messages with conflicting demands. Thus, efforts to centralize the police in
Bosnia represented a conflict-resolution measure aimed at weakening entities
and their political control over the police by ethno-national parties (at least this
was the hope). However, this approach was justified by the logic of eu acces-
sion. In the absence of eu-wide policing standards and, for that matter, widely
differing practices among eu member states, Bosnian Serb politicians called
the EU’s bluff, and eventually it had to back down.
Thus, when the eu began its mediation efforts in Kosovo in 2011, its record in
mediating conflicts in the Western Balkans over the previous decade was
mixed and based on structural difficulties. The 2007 Lisbon Treaty and the
2009 establishment of the European External Action Service (eeas) created
new structures and, thus, opportunities for eu engagement and mediation. At
the same time, the entry into force of the treaty shifted attention, at least at
first, inward and toward its own institution building.27 The foreign-policy
26 Sofia Sebastian, “The Role of the eu in the Reform of Dayton in Bosnia-Herzegovina”,

8(3–4) Ethnopolitics (2009), 341–354; and Robert Hayden, “The Continuing Reinvention of
the Square Wheel: The Proposed 2009 Amendments to the Bosnian Constitution”,
58(2) Problems of Post-Communism (2011), 3–16.
27 Steven Blockmans, “The European External Action Service One Year On: First Signs of
Strengths and Weaknesses”, cleer Working Paper (2012) No.2, available at <http://www
.asser.nl/upload/documents/1272012_11147cleer2012-2web.pdf>.
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capacity available to most national governments dwarfed the new institutions

available to the eu. However, the conjunction of these foreign-policy instru-
ments and the offer of accession for Serbia and Kosovo provided the eu with
greater abilities to engage, effectively, most key actors in the region.
Yet, the fact that not all eu members had recognized Kosovo and that the
eu rule of law mission, eulex, only was deployed after becoming ‘status-
neutral’—i.e., not recognizing Kosovo’s declaration of independence—limited
the eu’s credibility in the eyes of Kosovo’s authorities. However, this did not
translate into greater support for eulex in particular and the eu in general
from Serbia, where nationalist parties had taken a strong anti-eu position fol-
lowing Kosovo’s declaration of independence and where the government,
dominated by President Boris Tadić, formally supported eu accession, but,
through its diplomacy, diverged considerably from eu policy.28
As we already have highlighted above, that eu engagement rested on the
dual tracks of conflict mediation, on the one hand, and eu accession on the
other, a complementary and at times conflicting strategy that the eu has utilized
in former Yugoslavia with varying degrees of success since the early 2000s.29
The unresolved dispute between Serbia and Kosovo at first seemed like an
unlikely candidate for eu conflict mediation. Serbia had been a reluctant
‘Europeanizer’ when it came to fulfilling the conditions set by the eu for acces-
sion for Kosovo, eu membership appeared more remote than for Serbia and,
thus, unlikely to provide sufficient incentives for enabling the mediation
between the two countries to yield tangible results.30 In particular, the litera-
ture on eu conditionality emphasizes the transformative effect of the eu
during accession negotiations.31 Unlike eu conditionality, the resolution of
bilateral issues between Kosovo and Serbia was not guided by the acquis per se
28 Mladen Mladenov, “An Orpheus Syndrome? Serbian Foreign Policy after the Dissolution
of Yugoslavia”, in Soeren Keil and Bernhard Stahl (eds.), The Foreign Policies of Post-
Yugoslav States: From Yugoslavia to Europe (Palgrave, London, 2014), 147-172, esp. 157–158;
and Florent Marciacq, Europeanisation of National Foreign Policy in Non-eu Europe: The
Case of Serbia and Macedonia (PhD dissertation, University of Vienna and University of
Luxembourg, 2014).
29 See Florian Bieber, “Building Impossible States? State-building Strategies and eu
Membership in the Western Balkans”, 63(10) Europe-Asia Studies (2011), 1783–1802.
30 Spyros Economides and James Ker-Lindsay, “Pre-Accession Europeanization: The Case of
Serbia and Kosovo”, 53(5) Journal of Common Market Studies (2015), 1027–1044.
31 Ulrich Sedelmeier, “Europeanization in New Member and Candidate States”, 6(1) Living
Reviews in European Governance (2011), 5–52; and Frank Schimmelfenning, “Europeani-
sation Beyond the Member States”, 8(3) Zeitschrift für Staats- und Europawissenschaften
(2010), 319–339.
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294 Bieber
and, thus, required the eu to act both as an incentive and as a mediator. The
risk of “fake compliance”—discussed in recent years in the context of eu con-
ditionality in the Western Balkans32—also applies to the dialogue between
Serbia and Kosovo, as we shall see in the context of the implementation of the
agreements.
For both Serbia and Kosovo, mediation came ahead of the beginning of
accession talks, with Serbia being offered the beginning of negotiations as
the main reward, while Kosovo was offered a Stabilisation and Association
Agreement. The success of the mediation process, as this article will argue,
rested on a combination of factors: the fortuitous timing following the icj’s
2010 advisory opinion, the strong domestic and international incentives in
both Serbia and Kosovo to demonstrate their willingness to move toward the
eu, and the particularities of the mediation that only gradually moved toward
more contested matters.
4 On the Path to a Serbia-Kosovo Dialogue
Negotiations between Kosovo and Serbia began in 2011, culminating in the 2013
Brussels Agreement.33 However, they continued thereafter with further agree-
ments, including another major implementation agreement in the summer of
2015.34
Between 2008 and 2011, Serbia’s foreign minister, Vuk Jeremić, devoted him-
self to limiting and even seeking to reverse Kosovo’s international recognition
following its declaration of independence.35 While the government, dominated
32 See Gergana Noutcheva, “Fake, Partial and Imposed Compliance: The Limits of the eu’s
Normative Power in the Western Balkans”, 16(7) Journal of European Public Policy (2009),
1065–1084. See, also, the different studies in Arolda Elbasani (ed.), European Integration
and Transformation in the Western Balkans: Europeanization or Business as Usual?
(Routledge, London, 2013), in particular Arolda Elbasani, “Europeanization Travels the
Western Balkans: Enlargement Strategy, Domestic Obstacles, and Divergent Reforms”,
3–22; and Milada Vachudova, “eu Leverage and National Interests in the Balkans: The
Puzzles of Enlargement Ten Years On”, 52(1) Journal of Common Market Studies (2014),
122–138.
33 Op.cit. note 13.
34 “Statement by High Representative/Vice-President Federica Mogherini Following the
Meeting of the eu-Facilitated Dialogue” (25 August 2015) No.150825_02, available at
<http://eeas.europa.eu/statements-eeas/2015/150825_02_en.htm>.
35 See his profile, Nicholas Kulish, “Recasting Serbia’s Image, Starting With a Fresh Face”,
The New York Times (15 January 2010), available at <http://www.nytimes.com/2010/01/16/
world/europe/16jeremic.html?_r=0>.
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by President Tadić, sought eu integration as its primary goal, Jeremić’s bellig-

erent engagement with Kosovo worsened relations with the eu.
The strategy of Jeremić involved extensive bilateral diplomacy with the goal
of preventing recognition of Kosovo. While many countries did not recognize
Kosovo at first, this mostly was a consequence of skepticism about the legality
thereof or for domestic reasons, rather than due to Serbian diplomacy. In fact,
some countries that were courted by both Serbia and Kosovo after 2008 prob-
ably failed to recognize Kosovo out of inertia. At the level of international orga-
nizations, Serbia invested considerable energy in preventing Kosovo from
joining any important organization and was relatively successful, mostly due to
support on the matter by some key countries, such as veto-yielding Russia and
China at the un. In addition, Serbia succeeded in 2008 in convincing the un
General Assembly to request an advisory opinion from the icj on whether the
declaration of independence was in line with international law in general and
with the 1999 un Security Resolution No.1244, in particular (which established
Kosovo’s international administration). The icj ruled in 2010, however, that
Kosovo’s declaration of independence did not violate international law:
“The Court has concluded above that the adoption of the declaration of
independence of 17 February 2008 did not violate general international law,
Security Council resolution 1244 (1999) or the Constitutional Framework.
Consequently the adoption of that declaration did not violate any appli-
cable rule of international law.”36
This opinion took both Kosovo and Serbia by surprise: while the Serbian media
and political elite interpreted the decision as a defeat and Kosovo saw it as a
victory, the court’s opinion was more complicated.37 The court only interpreted
the declaration itself, not the substance thereof, and thus provided no guid-
ance as to whether independence itself or secession from Serbia was in line
with international law. By taking a narrow focus on the declaration only, it
36 icj Advisory Opinion, op.cit. note 11.

37 For divergent views on the opinion see Marc Weller, “Modesty Can Be a Virtue: Judicial
Economy in the icj Kosovo Opinion?”, 24(1) Leiden Journal of International Law (2011),
127–147; Hurst Hannum, “The Advisory Opinion on Kosovo: An Opportunity Lost, or a
Poisoned Chalice Refused?”, 24(1) Leiden Journal of International Law (2011), 155–161;
Richard Falk, “The Kosovo Advisory Opinion: Conflict Resolution and Precedent”,
105(1) The American Journal of International Law (2011), 50–60; and Elena Cirkovic, “An
Analysis of the icj Advisory Opinion on Kosovo’s Unilateral Declaration of Independence”,
11 German Law Journal (2010), 895–912, available at <http://www.germanlawjournal.com/
index.php?pageID=11&artID=1275>.
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296 Bieber
bypassed larger political questions and avoided putting itself in conflict with
major powers. Although the opinion failed to trigger a new wave of recogni-
tions, as Kosovo had hoped, it also did not stem (nor did it reverse) the recogni-
tion of Kosovo’s independence, as Serbia had wished.38
The disappointment with the ruling was shared across much of Serbia’s
political and media spectrum. The government’s declaration to the parliament,
supported by mps in a vote on 26 July, condemned the icj and insisted that:
“The National Assembly expresses its full commitment to achieving […]

national and political unity on the issue of [the] preservation of Kosovo
and Metohija, and confirms that Serbia will never, […] explicitly [or]
implicitly, recognize the unilaterally declared independence of Kosovo
and Metohija.”39
For its part, the Serbian opposition blamed the government for pursuing the
wrong strategy in regard to Kosovo and called for its resignation.40
By the time the icj handed down its conclusions, nearly 70 countries had
recognized Kosovo, and the icj opinion put Serbia in a difficult position. After
initially lobbying for a separate statement at the un General Assembly—but
following eu pressure and because of Serbia’s weak position—the eu and
Serbia, jointly, proposed a un resolution welcoming eu mediation among the
‘parties’.41 The text of the resolution thus gave the eu a mandate to mediate,
although it provided little guidance as to what the mediation should focus on
or what the end result would be:
“The un General Assembly welcomes the readiness of the European

Union to facilitate a process of dialogue between the parties; the process
38 The 2008 Serbian initiative in the un General Assembly and the subsequent 2010 Advisory
Opinion of the icj are discussed in detail in Marko Milanović and Michael Wood (eds.),
The Law and Politics of the Kosovo Advisory Opinion (Oxford University Press, Oxford,
2015).
39 The original-language text of the resolution is available at <http://www.mfa.gov.rs/
sr/index.php/arhiva-saopstenja/saopstenja-2010/4736-2010-07-28-11-29-45?lang=lat>. The
translation is from Dwyer Arce, “Serbia Parliament Rejects Kosovo Independence in Per-
petuity”, Jurist (27 July 2010), available at <http://jurist.org/paperchase/2010/07/serbia
-parliament-rejects-kosovo-independence-in-perpetuity.php>.
40 Milan Milošević, “Između Prokletija, Haga i Ist Rivera”, Vreme (29 July 2010), available at
<http://www.vreme.com/cms/view.php?id=942891>.
41 The subsequent dialogue between Serbia and Kosovo provided another argument for
holding off recognition until the outcome of the dialogue became clear.
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of dialogue in itself would be a factor for peace, security and stability in

the region, and that dialogue would be to promote cooperation, achieve
progress on the path to the European Union and improve the lives of the
people.”42
The resolution, thus, avoided further confrontation between the eu and Serbia
and, also, highlighted Serbia’s failure to sustain an active policy to resist
Kosovo’s independence. While the icj advisory opinion was more ambiguous
than the parties saw it, it provided an opportunity for the eu to pressure Serbia
to engage in dialogue if it wanted to proceed with eu integration and left the
Serbian government with few alternative strategies. The advisory opinion,
thus, inadvertently paved the way to eu mediation between Serbia and Kosovo.
5 The Beginning of eu-Mediated Talks
When talks between Serbia and Kosovo began in Brussels in March 2011, there
was no clear roadmap of the time line of the mediation or a defined goal for
the process. Rather, the eu—and in particular the eu High Representative of
the Union for Foreign Affairs and Security Policy, Catherine Ashton—sought
to promote a dialogue between the two parties in an effort to reduce tensions
and produce a settlement of (at least some) key issues that constituted real
obstacles for Kosovo. Furthermore, the newly established External Action
Service (headed by Ashton) needed a success in its early days, and the Serbia-
Kosovo dialogue provided such an opportunity.43
The approach thus did not aim to resolve the different views on Kosovo’s
statehood but, rather, to set them aside in order to make modest progress on
the ground. The ambiguity, as I will discuss in more detail below, was one of the
42 un General Assembly Resolution “Request for an Advisory Opinion of the International

Court of Justice on Whether the Unilateral Declaration of Independence of Kosovo Is in
Accordance With International Law” (8 October 2008) No.63/3, available at <http://www
.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/
Kos%20A%20RES63%203.pdf>.
43 See Rosa Balfour, “Change and Continuity: A Decade of Evolution of eu Foreign Policy
and the Creation of the European External Action Service”, in Rosa Balfour, Caterina
Carta, and Kristi Raik (eds.), The European External Action Service and National
Foreign Ministries (Ashgate, Farnham, uk, Burlington, vt, 2015), 31–44; and Niklas Helwig,
“The High Representative of the Union: The Quest for Leadership in eu Foreign Policy”, in
David Spence and Jozef Bátora (eds.), The European External Action Service: European
Diplomacy Post-Westphalia (Palgrave, London, 2015), 87–104.
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298 Bieber
key features of the process that would ensue, allowing the eu to portray suc-
cess where, in fact, there was little. The focus of the negotiations was, thus, on
what at first were termed “technical issues”. The combination of the focus on
such seemingly minor issues with ambiguity was the only way to establish a
modicum of progress. In general, one can distinguish between negotiations
that focused on relations between Serbia and Kosovo and those that were pri-
marily concerned with relations between Kosovan Serbs and Kosovo. The tech-
nical nature of the talks was aimed at building a minimal level of confidence
between the two governments and, also, at avoiding discussion of topics that
required either Serbia to openly acknowledge Kosovo’s independence or (in)
action which could be considered in Kosovo to be a diminution of Kosovo’s
independence. Yet even when excluding the issue of status, the gap between
the two parties remained large.
Within Serbia, the environment for such talks, in principle, was not unfavor-
able, despite the confrontational policy pursued by Foreign Minister Jeremić.
The main opposition party until 2008—the extreme right-wing nationalist
Serbian Radical Party (srs)—had split, and the more moderate wing under the
joint leadership of Tomislav Nikolić and Aleksandar Vučić sought to build ties
with the eu and its member states and devoted little attention to the issue of
Kosovo. Furthermore, Vojislav Koštunica, the outgoing prime minister, lost
crucial elections in 2008 after positioning himself as a staunch opponent of
Kosovo’s independence and an increasingly radical critic of the eu. Thus, the
Serbian government and President Boris Tadić, had little opposition to a more
conciliatory policy in regard to Kosovo—even the protests at the time of the
declaration of independence were loud but brief.
Nevertheless, Vuk Jeremić’s policy—encouraged (or at least tolerated) by
Tadić—provided for an antagonistic environment between Serbia and
Kosovo. Robert Cooper, a key eu mediator, noted that some eu member states
sought a more constructive role for Serbia in relation to Kosovo as a prerequi-
site to accepting Serbia’s eu membership application.44 As a consequence,
the eu was in a position to link eu accession and the status of Kosovo. This
put an end to the Serbian government’s declared goal of decoupling eu acces-
sion from its policy toward Kosovo. The Serbian government feared that the
linkage would require Serbia to recognize Kosovo. However, the perceived
defeat at the icj weakened Serbia’s bargaining position, and Serbia’s 2009
membership application to the eu gave the eu integration process a specific
44 “The Brussels Agreement ‘Generated by Conversations, Not by Relentless Pressure’,

Interview with Robert Cooper”, lsee Blog (6 February 2015), available at <http://blogs.lse
.ac.uk/lsee/2015/02/06/robert-cooper-interview/>.
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form. By engaging in dialogue, Serbia also sought to avoid pressure to recog-

nize Kosovo outright.
In Kosovo, on the other hand, the popular movement Vetëvendosje (Self-
Determination) competed in elections for the first time in 2010 and won 12.6
percent of the vote, making it the third-largest party in parliament. It rejected
dialogue with Serbia—arguing that dialogue would only be acceptable if
Kosovo participated as Serbia’s equal and only once Serbia formally apologized
for crimes committed in Kosovo—and demanded complete independence,
refusing the formal and informal mechanisms of international supervision.45
Thus, the domestic political context for negotiations was far from ideal.
Arguably, the Kosovan government was in a weaker position than Serbia, but it
could count on more international, especially crucial us, support than Serbia.
Serbia’s support on Kosovo from Russia and China translated into little when it
came to dialogue under eu auspices; yet, Serbia could live easier with the
status quo than Kosovo could. In the context of eu mediation, the five coun-
tries not recognizing Kosovo became crucial, as they precluded a full eu per-
spective for Kosovo, whereas Germany and the uk clearly conditioned Serbia’s
progress toward the eu with visible progress in its dialogue with Kosovo. In
Kosovo, statehood was challenged externally through non-recognizers and
internally through territories not under state control, as well as openly by
Serbia, which identified Kosovo as its main security threat.46 However, the eu’s
intervention in the process was crucial, as it meant that the talks (and the will-
ingness of both parties to compromise) were embedded in eu accession: for
Serbia, the possibility of becoming a candidate and beginning accession talks
became the incentive offered by the eu. This offer was not fundamentally new.
Jelena Subotić already noted in 2010 that “[t]he earlier trade-off—Europe for
The Hague—was now replaced by a new one—Europe for Kosovo”.47 For
Kosovo, the reward was a Stabilization and Association Agreement, agreed by
45 The party remains opposed to dialogue, but modified its position after the 2014 elections, as
it anticipated participation in a post-election coalition with three other parties. “Agreement
on Principles between the ldk-aak-nisma coalition and Lëvizja vetëvendosje!”
(10 September 2014), available at <http://www.vetevendosje.org/en/news_post/agreement-on
-principles-between-the-ldk-aak-nisma-coalition-and-levizja-vetevendosje/>.
46 Republic of Serbia, “National Security Strategy of the Republic of Serbia” (October 2009),
available at <http://www.voa.mod.gov.rs/documents/national-security-strategy-of-the-republic
-of-serbia.pdf>. This position was reiterated in 2012 by the chief of staff of the Serbian Army.
See “Kosovo Poses Biggest Security Threat to Serbia”, B92.net (18 May 2012), available at <http://
www.b92.net/eng/news/politics.php?yyyy=2012&mm=05&dd=18&nav_id=80301>.
47 Jelena Subotić, “Explaining Difficult States: The Problems of Europeanization in Serbia”,
24(4) East European Politics and Societies (2010), 595–616.
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300 Bieber
the eu’s European Commission in spring of 2015,48 something that all the
other countries in the region already had concluded.
At first, the negotiations focused on resolving issues rather than on a long-
term mediation strategy, concentrating initially on resolving practical problems
not touching sensitive symbolic matters.49 The topics that were initially dis-
cussed included the return of land and civil registers to Kosovo (taken by Serbian
authorities in 1999) and the recognition of Kosovan diplomas—topics chosen
because they had real consequence for citizens in Kosovo but not laced with
symbolism or linked to statehood. The talks had two crucial features. First, they
were incremental seeking to produce interim agreements rather than aiming at
a comprehensive settlement. Second, each of these intermediate steps was
marked not with an agreement or a treaty but, rather, by the conclusion of the
talks.50 In fact, these conclusions were vague and offered few specific details.
Between March 2011 and February 2012, Kosovo and Serb negotiators met in
Brussels in nine rounds of negotiations, reaching a number of agreements each
time. The talks were led by Edita Tahiri (deputy prime minister of Kosovo) and
Borislav Stefanović (political director at the Serbian Ministry of Foreign Affairs).
The key points of consensus reached during these talks included Serbia’s
acceptance of Kosovan customs stamps, thus paving the way to legal trade
between Serbia and Kosovo and, also, within the Central European Free Trade
Agreement Area (cefta), with the much diminished un mission, unmik,
acting as an intermediary.51 In addition, Serbia agreed to accept university
degrees from Kosovo, which it had been rejecting since 2008 due to the
reference to the Republic of Kosovo on the degrees. Through intermediate cer-
tification by the European University Association, the degrees would become
recognized in Serbia. Such a measure was particularly important for the
Albanian minority in Serbia, as most of those pursuing higher education
48 “Stabilisation and Association Agreement Between the European Union, of the One Part,
and Kosovo, of the Other Part” (30 April 2015), available at <http://ec.europa.eu/enlarge
ment/news_corner/news/news-files/20150430_saa.pdf>.
49 “Serbia/Kosovo: The Brussels Agreements and Beyond,” seesox Workshop Report (January
2014), 3, available at <http://www.sant.ox.ac.uk/seesox/workshopreports/Serbia-Kosovo%
20Workshop%20report.pdf>.
50 Adem Beha, “Disputes over the 15-Point Agreement on Normalization of Relations
Between Kosovo and Serbia”, 43(1) Nationalities Papers: The Journal of Nationalism and
Ethnicity (2015), 102–121.
51 This also meant that products from Kosovo would need to be labeled as “unmik”, which
complicates exports, as this designation is meaningless elsewhere. Furthermore, the
implementation was complicated by the fact that the customs area for Kosovo is in South
Mitrovica, but there is no effective customs control north of the Ibar River.
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among Albanians from Serbia enrolled in universities in Kosovo and only

would be able to obtain employment in Serbia as a teacher or a civil servant if
their diplomas were recognized by Serbia. It also mattered for the Serbian
minority, as Kosovo had not been willing to recognize degrees issues by the
Serbian university in North Mitrovica (officially designated as the University of
Prishtina in Mitrovica). As in other domains, the ambiguity of the agreement
translated into difficulties in terms of implementation, as the Serbian
University of Mitrovica was not explicitly mentioned. Thus, it remained
unclear whether its degrees would be recognized like those of other Serbian
universities (as the Serbian government argued) or whether it would require a
separate agreement (as the Kosovan side maintained).52
Other issues—still ‘technical’ but of greater significance—were those of
land records (or cadasters) and the civil register, which (as highlighted above)
the Serbian authorities had removed from Kosovo at the end of the war in
1999. This made property claims and real estate sales—along with personal
documentation—in Kosovo problematic. The agreement between Kosovo and
Serbia established a procedure by which Serbia would submit scanned copies
of the registers to Kosovo, a rather complicated and slow process. The talks also
touched on the freedom of movement for citizens of both countries. Unless
Serbia recognized Kosovan documents, travel through and to Serbia remained
difficult for many citizens of Kosovo. The agreement reached in this matter was
the mutual recognition of id cards for travel as well as of driver’s licenses.
These achievements notwithstanding, many practical obstacles remained, e.g.,
high road taxes and the need for temporary license plates when traveling
through Serbia if the vehicle had post-independence license plates along with
the issue of free movement for third-country nationals and, also, citizens with-
out id cards.53
There was a gradual movement in the negotiations from less sensitive topics
to more complex and controversial ones, such as management of the border
between Serbia and Kosovo. By incorporating these issues into the negotiations,
they also were removed from the question of recognition, which remained off
52 See “Agreements not to Agree Between Prishtina and Belgrade” (n.d.), available at <http://
internewskosova.org/en/Emisionet/Agreements-not-to-agree-between-Prishtina-and-
Belgrade—75>; and “Big Deal: Civilized Monotony. Civic Oversight of the Kosovo-Serbia
Agreement Implementation”, Balkan Insight (November 2014) No.1, available at <http://
www.balkaninsight.com/en/file/show/BIG%20DEAL%20FINAL%20ENG.pdf>.
53 Leon Malazogu, Florian Bieber, and Drilon Gashi, “The Future of Interaction Between
Prishtina and Belgrade”, Confidence Building Measures in Kosovo (September 2012) No.3,
available at <http://d4d-ks.org/assets/2012-10-17-PER_DialogueENG.pdf>.
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302 Bieber
the agenda. The Integrated Border Management (ibm) agreement concluded

in December 201154 marked the first significant step regarding the dialogue,
both complicated and both given urgency by clashes in the north of Kosovo in
the months preceding the end of the year (see below). The joint control of the
border through the ibm was crucial in reducing smuggling and other illegal
activities. By settling on the term “ibm”, the agreement enabled creative ambi-
guity: for Kosovo, it meant “integrated border management”; for Serbia, on the
other hand, it meant “integrated boundary management”. This creative ambi-
guity allowed the negotiation process to continue, but it could not resolve
different views that were not merely semantic. As a result, the implementation
process was considerably more difficult than reaching the agreements between
Serbia and Kosovo in the first place. Implementation was a sensitive process in
light of its symbolic significance: it meant that border controls would be estab-
lished between the north of Kosovo and Serbia (with a shared practical goal of
reducing smuggling).
Here once more, the agreement was concluded notwithstanding the differ-
ing views of the parties on the status of Kosovo. Thus, rather than consolidat-
ing Kosovo’s independence, the process cemented the competing narratives
and gave Serbia strong formal and informal roles in Kosovo, leading to a de
facto degree of shared sovereignty in parts of Kosovo.
The agreement, first of all, foresaw the establishment of joint border cross-
ings staffed by Kosovo, Serbian, and eu (eulex) representatives; in the case of
the contested crossings in the north of Kosovo, eulex is the only authority.55
The second sensitive issue negotiated revolved around the regional repre-
sentation of Kosovo. Despite Kosovo’s independence, it had to continue to rely
on unmik to formally represent it in international regional organizations.
Following the 2012 agreement on the regional representation of Kosovo,56
54 See, for example, European Court of Auditors, “Special Report: European Union Assistance
to Kosovo Related to the Rule of Law” (2012) No.18, referencing inter alia the December
2011 ibm, available at http://www.eca.europa.eu/Lists/ECADocuments/SR12_18/SR12_18
_EN.PDF>.
55 Aubrey Hamilton, “From Technical Arrangements to Political Haggling”, A Policy Report
by the Group for Legal and Political Studies (February 2012) No.2, 18, available at <http://
legalpoliticalstudies.org/download/Policy%20Report%2002%202012%20english.pdf>.
See, also, International Crisis Group, “Serbia and Kosovo: The Path to Normalisation”,
Europe Report (19 February 2013) No.223, available at <http://www.crisisgroup.org/en/
regions/europe/balkans/kosovo/223-serbia-and-kosovo-the-path-to-normalisation
.aspx>.
56 “Agreement between Serbia and Kosovo (Pristina): Arrangements Regarding Regional
Representation and Cooperation” (24 February 2012), available at <https://inavukic.files
.wordpress.com/2012/02/agreement-between-serbia-and-kosovo.pdf>.
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Kosovo was able not only to represent itself but, also, to sign agreements
directly. However, the agreement did not pave the way to comprehensive mem-
bership in international organizations, as it was limited to regional organiza-
tions and also required Kosovo to use a rather cumbersome qualifier: “This
designation is without prejudice to positions on status, and is in line with
unsc 1244 and the icj Opinion on the Kosovo Declaration of Independence.”57
As the details of its use were not fully specified in the agreement, a number of
regional meetings in the years following the agreement were fraught with ten-
sion, as either Serbia or Kosovo objected to the use of the qualifier.
The sensitive nature of the overall mediation process between Serbia and
Kosovo and the risks of failure became apparent at a number of junctures, as
could be seen when the issues of customs were discussed. In July 2011 Serbia
stayed away from negotiations, leading to an attempt by Kosovo‘s government
to force Serbia’s hand,58 i.e., that same month, the Kosovan government first
introduced a ban on Serbian goods based on reciprocity, not an insignificant
measure considering the significance of the Kosovan market for Serbian goods
(Serbia’s largest trade surplus is with Kosovo).59 A few days later, Kosovan
security forces sought to enforce the rule by taking control of the border cross-
ings in the north of Kosovo that had not been under government control.
During the operation, a member of a police unit was killed, and Kosovan Serbs
in the north erected barricades. After Kosovan forces retreated from the check-
points a few days after the operation, the border posts were demolished and
one was set ablaze by Serb protestors. This led to kfor taking over the posts.60
By September, Kosovo had lifted the ban on Serbian goods after a customs
agreement was reached in September 2011 that allowed Kosovo to use the term
‘Kosovo customs’. While formally Serbia had backed down, other obstacles
continued to prevent Kosovan products from entering Serbian market.
Nevertheless, in the north, the standoff between kfor and the Kosovan Serbs
who erected the barricades continued for months, and many in the north sup-
ported the barricades and participated personally.61 Over time, it became
apparent that the roadblocks, despite some support from Serbia, could not
57 European Union, Press Statement, “eu Facilitated Dialogue: Agreement on Regional

Cooperation and ibm Technical Protocol” (24 February 2012), No.5455/12, available at
<http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/128138
.pdf>.
58 Hamilton, op.cit. note 55, 7.
59 “New Trouble in Kosovo,” The Economist (26 July 2011), available at <http://www.econo
mist.com/blogs/easternapproaches/2011/07/serbia-and-kosovo>.
61 Ibid., 10.
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304 Bieber
prevent international control over the border between Serbia and Kosovo, and
the protests slowly petered out. On one side, the violence highlighted the risks
of the mediation and, also, the low levels of trust between the parties that
could result in such an escalation; it also underlined the need for further medi-
ation, as the status quo had become unsustainable. In particular northern
Kosovo, which had existed in legal limbo since 1999 and even more so after
2008, could not maintain its status after the events of the summer of 2011.
The barricades and an unofficial referendum organized in February 2012 in
the four largely Serb-populated municipalities in northern Kosovo highlighted
the alienation of Kosovan Serbs from both the Serbian government and the
authorities in Kosovo. In the referendum, citizens were asked the rather ten-
dentious question: “Do you accept the institutions of the so-called Republic of
Kosovo?” The answer was no surprise: of the purported 26,524 participants,
99.74 percent voted no. The referendum was locally organized and rejected by
both Serbia and Kosovo; yet, the opposition to the state of Kosovo and to talks
that would strengthen it in northern Kosovo was real.62
6 From Technical to Political Negotiations
By 2012, the technical negotiations had run their course, and it became appar-
ent that without a larger political settlement, the implementation of the tech-
nical agreements concluded in 2011 and 2012 would not be completed. The less
sensitive parts of the agreement were mostly implemented, but the controver-
sial aspects were stalling, in particular as a consequence of the crisis in north-
ern Kosovo.
While the Assembly of Kosovo voted to support talks as long as they did not
threaten Kosovo’s integrity and the Assembly would ratify any agreement,
Serbia argued for an autonomous region in northern Kosovo.63 After the tech-
nical dialogue appeared to have “exhausted itself”,64 it was unexpectedly
revived by the 2012 elections in Serbia.
The victory of the Serbian Progressive Party (sns) in parliamentary elections
and the defeat of Boris Tadić by Tomislav Nikolić in presidential elections
brought new interlocutors to power in Serbia, and the sns had several reasons
62 “Serben stimmen mit fast 100 Prozent gegen Prishtina”, Frankfurter Allgemeine Zeitung (16
February 2012), available at <http://www.faz.net/aktuell/politik/ausland/volksabstim-
mung-im-kosovo-serben-stimmen-mit-fast-100-prozent-gegen-prishtina-11651469.html>.
63 Beha, op.cit. note 50, 108.
64 seesox, op.cit. note 49, 4.
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to engage more energetically in the talks. First, the party was treated with sus-
picion by many eu officials due to the nationalist background of its leadership;
thus, it seized on the talks with Kosovo as a way to prove its transformation.
Second, it had no strong political challenger that could accuse the party of trea-
son. The Democratic Party of Serbia (dss) entered parliament but had declin-
ing levels of support despite (or because of) its focus on Kosovo and its rejection
of eu accession. The srs, from which the sns had split four years earlier, failed
to clear the 5 percent threshold. Third, the sns recognized Serbia’s declining
influence with regard to Kosovo and seized upon the opportunity to maximize
concessions for Serbia from the eu and Kosovo.65
The eu had provided clear guidelines over the direction of the dialogue by
late 2012. In the December 2012 conclusions of the European Council, it identi-
fied four conditions for Serbia to move to the next phase of eu integration,
i.e., (A) the implementation of the agreements reached to date; (B) the dis-
mantling of the Serbian police and judiciary institutions in Kosovo; (C) the
introduction of transparency into the spending for Kosovo; and (D) greater
cooperation with eulex.66
The conclusions were more specific than earlier eu statements in this field
and, also, highlighted the shift from technical questions to more sensitive mat-
ters that affected the status of the north of Kosovo. Thus, between October 2012
and June 2013, the negotiations shifted to a higher level, with the prime minis-
ters of Kosovo and Serbia, Hashim Thaçi and Ivica Dačić, respectively, partici-
pating. The first tangible agreements in December foresaw the establishment
of liaison officers who would act as representatives of the two countries in
the respective eu missions. While Kosovo treated this agreement as the equiv-
alent of the establishment of diplomatic relations and assigned a former
ambassador to the post, Serbia appointed a junior official without a diplomatic
background.67 Overall, the impact of the two officials has been limited. Another
agreement foresaw the establishment of a multiethnic police unit in Kosovo to
protect religious and cultural heritage sites, as well as an arrangement on the
ibm, an important leftover from the earlier technical talks.68
65 See Milada Vachudova, op.cit. note 32; and Denisa Kostovicova, “When Enlargement
Meets Common Foreign and Security Policy: Serbia’s Europeanisation, Visa Liberalisation
and the Kosovo Policy”, 66(1) Europe-Asia Studies (2014), 67–87.
67 Kosovar Institute for Policy Research and Development, “The Implementation of
Agreements of Kosovo-Serbia Political Dialogue”, Policy Paper (2013) No. 4, 1–24, available
at http://www.kipred.org/repository/docs/THE_IMPLEMENTATION_OF_AGREEMENTS
_OF_KOSOVO‐SERBIA_POLITICAL_DIALOGUE_373680.pdf>.
68 Ibid., 6–9.
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306 Bieber
The breakthrough came in April 2013 when the two sides signed a fifteen-
point agreement that addressed some of the most controversial matters in
their relations. Most of the points addressed the status of the north, including
six points on the Association/Community of Serb-majority municipalities.
Falling short of Serbian demands (and Kosovan fears) of an autonomous
region, the agreement allows municipalities to coordinate and pool some com-
petences. While it can be granted undefined additional powers by the central
government and its existence is to be protected by government decision, it
does not have explicit legislative competences and does not constitute an
additional layer of government. However, the vagaries of the agreement meant
that there was extensive wrangling over the details.
As Andreas Ernst noted, the agreement was an example of the “creative
ambiguity” of the entire negotiation process, with the two sides promoting a
very different understanding of the agreement. Serbian mediators, for exam-
ple, viewed the Association/Community of Serb Municipalities as part of the
formal governance structure of Kosovo, whereas Kosovan officials dismissed it
as just an ngo.
Other aspects of the agreement outlined the mechanisms by which to
include the police and judicial structures in the north in the Kosovo frame-
work. Elections to new local authorities were agreed upon in the northern
municipalities (as was commencement of institutional transformation), and
both Kosovo and Serbia committed to refrain from obstructing each other’s
path toward eu integration. The 2013 Brussels Agreement,69 as it has come to
be known, was more a “plan of management of the relations between Pristina
and Belgrade, rather than a clear roadmap with a series of milestones and
objectives”.70 In addition to being deliberately ambiguous, the Agreement was
also concluded against the backdrop of the narrow window of opportunity
that was available. General elections in Kosovo and for the European Parliament
in 2014 meant that the process needed to have reached a point of no return by
then, at least in the eyes of the key protagonists.71 As it turned out, Serbia also
held general elections in 2014.
69 “First Agreement of Principles Governing the Normalization of Relations”, op.cit. note 13.
71 Andreas Ernst, “The April Agreement: A Step towards Normalization between Belgrade
and Pristina?”, 1(1) Contemporary Southeastern Europe (2014), 122–126, at 123, available at
<http://www.suedosteuropa.uni-graz.at/cse/sites/default/files/papers/Ernst_The_April
_Agreementl.pdfhttp://www.suedosteuropa.uni-graz.at/cse/sites/default/files/papers/
Ernst_The_April_Agreementl.pdf>.
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The reception of the April 2013 Brussels Agreement was mixed. While inter-
national observers generally welcomed it as a breakthrough, opposition par-
ties in both Serbia and Kosovo challenged it.
The Serbian Assembly accepted the government report on the agreement,
with 174 of the 250 members voting in favor. The Assembly did not ratify the
Agreement, which would have implied its international nature, a posi-
tion Serbia continues to reject.72 The Serbian Constitutional Court rejected a
petition by opposition mps to assess the constitutionality of the Brussels
Agreement, arguing that it was neither an international agreement nor legally
binding domestically but, rather, a political document, which does not deter-
mine the final status of Kosovo.73
In particular in Kosovo, some media and Vetëvendosje criticized the agree-
ment for establishing an additional level of government in the north. While the
agreement fell short of establishing any type of autonomy comparable to
Republika Srpska in Bosnia and Herzegovina, it was primarily concerned with
regulating the status of the north.74
Support for the agreement in Kosovo has been solid among the political
elite. The Kosovo Assembly ratified the Brussels Agreement, with majority of
84 of the 120 members voting in favor. However, popular attitudes among
Albanians and Serbs have been more ambivalent. The number of supporters
and opponents among Albanians was evenly divided in a survey conducted
in 2013.75
As in Serbia, the opposition in Kosovo challenged the law and thus the
Agreement in Kosovo’s Constitutional Court, but the Court did not evaluate
72 “Skupština Srbije usvojila Vladin izveštaj”, Večernje novosti (26 April 2013), available at
<http://www.novosti.rs/vesti/naslovna/politika/aktuelno.289.html%3A431325-Skups
tina-Srbije-o-briselskom-dogovoru?keepThis=true&TB_iframe=true&height=650&width
=850&caption=Novosti>.
73 Constitutional Court, Republic of Serbia, Zaključak Ustavnog suda “Odbacuje se predlog
za ocenu ustavnosti i zakonitosti parafiranog ‘Prvog sporazuma o principima koji regulišu
normalizaciju odnosa’ između Vlade Republike Srbije i Privremenih institucija samou-
prave u Prištini, od 19 aprila 2013 godine”, Glasnik Ustavnog suda (2013) No.247, available at
<http://slglasnik.info/sr/13-02-02-2015/27308-zakljucak-ustavnog-suda-broj-iuo-247-2013
-i-izdvojena-misljenja-sudija.html>.
74 Beha, op.cit. note 50, 109. Critics have argued that the agreement paved the way to the
‘Daytonization’ of Kosovo, echoing similar concerns noted after 2001 in Macedonia.
However, both comparisons neglect the significance of blockages at the state level in
Bosnia and the difference in size.
75 “The Implementation of Agreements...”, op.cit. note 67, 4.
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308 Bieber
the Agreement itself; instead, it merely noted that the ratification process was
not in conflict with Kosovo’s Constitution.76 In fact, the agreement—similar to
the 2001 Ohrid Framework Agreement for Macedonia—did not directly
become law but, rather, set out legislative changes that would implement it.
Thus, the implementation becomes part of a domestic process that is subject
to parliamentary decision-making.
After the Agreement, an implementation plan outlined some of the next
steps. However, this plan,77 initiated by the two prime ministers and witnessed
by Catherine Ashton in May 2013, also lacked details and laid out only the first
steps to be taken in 2013. A recurring challenge was that the deadlines outlined
in this and other agreements were wildly optimistic and, thus, rarely kept.
Additional meetings and mediation by the eu continued to be needed, with
both the risk that the details could set the process back and the advantage of
empowering the eu as the key broker in the process—not just during the
negotiations over the agreement.
7 The Long Implementation
The 2013 Brussels Agreement,78 as already noted, is ambitious and brought with
it considerable challenges on how to translate it into reality. The implementation
of earlier agreements had been patchy, often with the parties moving slowly in
fields that were not in their interest and conflicting interpretations of the argu-
ments among the parties. The slow implementation was a result of the design of
the negotiation process, which had considerable ambiguity in-built and thus
shifted the burden from the agreement to implementation. The patchy and slow
implementation largely was a consequence of the nature of the process.
Now, the implementation rested not only on Kosovo and Serbia but, also, on
Kosovan Serbs who had not been consulted or involved in the mediation. This
made the Kosovan Serbs’ ‘political ownership’ of the agreement problematic
76 Constitutional Court, Republic of Kosovo, “Vlerësim i kushtetutshmërisë së Ligjit,

Nr.04/L-199, për ratifikimin e Marrëveshjes së parë ndërkombëtare të parimeve që
rregullojnë normalizimin e marrëdhënieve ndërmjet Republikës së Kosovës dhe
Republikës së Serbisë dhe të Planit të zbatimit për këtë marrëveshje” (9 September 2013)
KO 95/13, available at <http://www.gjk-ks.org/repository/docs/gjkk_ko_95_13_shq.pdf>
and, also, in English at <http://www.gjk-ks.org/repository/docs/gjkk_ko_95_13_ang.pdf>.
See, also, Beha, op.cit. note 50, 111–113.
77 “Implementation Plan” (n.d.), available at <https://s3.eu-central-1.amazonaws.com/euobs
-media/0807580ad8281aefa2a89e38c49689f9.pdf>.
78 “First Agreement of Principles Governing the Normalization of Relations”, op.cit.note 13.
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and the process difficult. As noted earlier, a large majority of Serbs in the
municipalities of northern Kosovo had rejected the dialogue and any steps that
would place them under Kosovan rule. The largest Kosovan Serb party, which
had participated in Kosovo’s institutions, collapsed amid accusations of abuse
of office and corruption, and the Serbian government established Srpska as a
weak and loyal coalition of parties and politicians in order to dominate Kosovan
Serb politics. Due to the resistance of the Kosovan Serb elite in the north to any
agreement, the Kosovan authorities also relied on Serbia imposing any agree-
ment on Serbs in Kosovo. By 2015, the dominance of the Serbian government
and the ruling Serbian Progressive Party over Kosovan Serb politics became
apparent, as some 3,000 inhabitants (out of 6,900) in the Kosovo town of
Štrpce—located in the south of Kosovo and previously beyond the direct polit-
ical influence of Serbia—collectively joined the sns in September 2015.79
However, key parts of the Brussels Agreement80 relied on the participation
of Kosovan Serbs in local elections that would transition the municipalities
from being administered by rules set in Belgrade to those set in Prishtina. The
Serbian government took a heavy-handed approach in encouraging Kosovan
Serbs to vote, first by setting up the Srpska electoral list and by arguing that the
Association/Community of Serb municipalities would safeguard Serb inter-
ests. It raised unrealistic expectations. The campaign slogan implied that a
vote for the Srpska list would translate into autonomy similar to that of
Republika Srpska in Bosnia and Herzegovina.81
After having encouraged Serbs in the north to boycott Kosovo’s elections
and institutions, the turnaround from a boycott call to the encouragement of
Serbs to participate in elections and Kosovo’s institutions was swift and hard to
follow for both elites and ordinary Serbs in the northern municipalities of
Kosovo: many politicians in the north who had built their careers on rejecting
an independent Kosovo boycotted the election, and even branches of the ruling
party in Serbia came into conflict with the government over participation in
the elections.82 The November 2013 elections were thus highly problematic.
79 Dejan Spalović, “Kako sam učlanio Štrpce u sns,” Politika (17 September 2015), available at
<http://www.politika.rs/rubrike/Politika/Kako-sam-uclanio-Strpce-u-SNS.lt.html>.
80 “First Agreement of Principles Governing the Normalization of Relations”, op.cit. note
13.</p>
81 “Beograd dokazuje bitnost izbora”, B92.net (16 September 2013), available at <http://www
.b92.net/info/vesti/index.php?yyyy=2013&mm=09&dd=16&nav_category=640&
nav_id=754194>.
82 Balkans Policy Research Group, “Something Completely Different in Northern Kosovo”
(23 October 2013), 1-10, available <http://balkansgroup.org/wp-content/uploads/2013/10/
North-Kosovo-Something-Completely-Different.pdf>.
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310 Bieber
Turnout was low despite intense pressure by the Serbian government, and vio-
lence marred the polls in Mitrovica. Thus, a rerun was scheduled two weeks
after the original vote in some polling stations. In February 2014, the vote had to
be rerun in Mitrovica after the mayor-elect, Krstimir Pantić, refused to take the
oath of office, as this required the signing of documents that included the coat
of arms of Kosovo and the term “Republic of Kosovo”.83
Overall, Serbia strengthened its influence in the rest of Kosovo, where Serbs
mostly had voted for parties not connected with or controlled by the Serbian
state. Now, the Srpska electoral list took control of nine out of ten predomi-
nantly Serb municipalities.84 Delays in the establishment of functioning Serb
municipalities within the Kosovan framework meant that the Association/
Community of Serb Municipalities, a cornerstone of the Brussels Agreement,85
could not be set up within the time frame envisaged in the implementation
plan.86
In addition, implementation was highly dependent on political will and
stable majorities. Thus, new elections in 2014—in Serbia in March and in
Kosovo in June—put a halt to the high-level talks between the two sides. While
Serbia quickly constituted a government led by the dominant Serb Progressive
Party, and Aleksandar Vučić took over the post of prime minister from his
junior coalition partner Ivica Dačić, government formation was more compli-
cated and protracted in Kosovo. The previously dominant Democratic Party of
Kosovo (pdk), led by Hashim Thaçi, remained the largest party, but a heteroge-
neous coalition of opposition parties mustered a majority and claimed power.
An ambiguous clause in the 2008 Kosovo Constitution87 led to a stalemate that
only ended after heavy-handed us intervention that brought about a grand
83 Edona Peci, “Kosovo’s North Mitrovica Set to Repeat Mayor Vote,” Balkan Insight
(20 January 2014), available at <http://www.balkaninsight.com/en/article/kosovo
-president-sets-date-for-mayoral-elections-in-mitrovica-north>.
84 The Democratic Policy Council notes that the agreement strengthened Serbia’s influence
among Serbs in the south of Kosovo, where its clout had declined after 2008. Kurt
Bassuener and Bodo Weber, “Not Yet a Done Deal: Kosovo and the Prishtina-Belgrade
Agreement”, dpc Policy Paper (November 2013), available at <http://democratizationpol-
icy.org/pdf/briefs/DPC%20Kosovo%20Policy%20Paper%20November%202013.pdf>.
85 “First Agreement of Principles Governing the Normalization of Relations”, op.cit. note 13.
86 Leon Malazogu, Filip Ejdus, Milan Nič, and Tomasz Żornaczuk, “Integration or Isolation?
Northern Kosovo in 2014 Electoral Limbo”, cepi, D4D, bcsp, pism Policy Paper (14 February
2014), available at <http://d4d-ks.org/assets/CEPI-Integration-or-Isolation.pdf>.
87 Kushtetuta e Republikës së Kosovës, Gazeta Zyrtare e Republikës së Kosovës (9 April 2008),
available at <http://gzk.rks-gov.net/ActsByCategoryInst.aspx?Index=1&InstID=1&CatID=1>
and <http://gzk.rks-gov.net/ActsByCategoryInst.aspx?Index=1&InstID=1&CatID=1>.
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coalition between the pdk and the second-largest party, the Democratic
League of Kosovo (ldk), with the latter’s Isa Mustafa being named prime min-
ister in December 2014.88
Early elections in Serbia and the protracted post-election period in Kosovo
led to an eleven-month break in direct dialogue between the prime ministers
between March 2014 and February 2015, as well as a change in the individuals
involved in the dialogue. Not only did the prime ministers change, so did the
eu mediator as well with Federica Mogherini replacing Catherine Ashton
in 2014.89
The Kosovo-Serbia dialogue is, despite its agreements, still a process that
can be halted and even reversed easily—especially as there still are key actors
in Kosovo who are not only not committed to the agreements but, even, may
openly oppose them. In Kosovo, the main opposition party, Vetëvendosje,
rejects dialogue with Serbia and might undo some of the agreements reached
if it were to come to power.90 In Serbia, progress largely is contingent on
Serbia’s eu accession. However, this process is fraught with risks, as eu acces-
sion for Serbia receding as a priority within the eu and the Serbian gov-
ernment occasionally taking a very critical and even hostile stance toward
the eu.91
In addition, relations between Serbs and Albanians in Kosovo can derail the
implementation of the agreement. In the June 2014 Kosovan parliamentary elec-
tions, Serbs from the north participated in the elections for the first time, and the
Serbian government supported the Srpska electoral list—including both
Kosovan Serb politicians who earlier had boycotted Kosovo’s institutions and
candidates from the Independent Liberal Party (sls), which had participated in
the previous Kosovan government. In early 2015, a statement by Serb Aleksandar
Jablanović, the Minister for Return and Communities in the Kosovan govern-
ment, caused a major crisis that could have derailed the talks. After calling
Albanian protestors who attacked Serbs in Gjakova/Đakovica “savages”, massive
88 The outside intervention in favor of a grand coalition was based on the concern that the
opposition would jeopardize the dialogue due to Vetëvendosje’s strong critique of the
process.
89 “Belgrade-Priština Dialogue Resumes”, EuroActiv (12 February 2015), available at <http://
www.euractiv.com/sections/enlargement/belgrade-pristina-dialogue-resumes-312047>.
90 Arben Sylejmani, “Kosovo Nationalists Demand End to Serbia Talks”, Balkan Insight
(26 June 2014), available at <http://www.balkaninsight.com/en/article/vetevendosje
-insists-in-changing-kosovo-serbia-dialogue>.
91 “Vučić i Davenport rešavaju spor”, B92.net (13 January 2015), available at <http://www.b92
.net/info/vesti/index.php?yyyy=2015&mm=01&dd=13&nav_id=946111>.
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312 Bieber
protests92 were held in Prishtina against him, resulting in his dismissal—much

to the disapproval of the Serbian government.
Despite the crisis and the slower pace of negotiations in 2015, a key set of
details was agreed upon in August 2015 on the implementation of earlier agree-
ments, including the freedom of movement in Mitrovica, energy, telecommu-
nication and, most importantly, the Association/Community of Serb-majority
municipalities.93
8 Conclusions: Features of eu Mediation
eu mediation between Kosovo and Serbia, doubtlessly, has been a success.

Following the tense standoff in the aftermath of Kosovo’s 2008 declaration of
independence, some 28 agreements concluded as of September 2015 have
resolved a variety of outstanding issues—a number of which were open since
1999—and established a format for a high-level dialogue between the parties.
This cooperation would have been unthinkable without eu intervention. The
eu seized the particular opportunity provided by the icj advisory opinion and
the motivation of the Serbian government to make progress toward eu mem-
bership. Without bringing eu accession into the equation, the talks likely would
not have led to results. However, this alone does not suffice to explain the suc-
cess of the dialogue. Earlier and simultaneous efforts to induce compromise
among Bosnian leaders, for example, did not result in any tangible agreement.
As with most successful negotiations, the key was identifying shared—or
separate, yet compatible—interests that could be addressed in an agreement.
While Kosovo’s interest in the north was primarily about formally placing it
under government control, Serbia sought to retain its influence in the north
and ensure that it would retain a dominant position over Kosovan Serbs, as
well as to control the money that had gone from Serbia to Kosovo—often,
unchecked and used to support radical and criminal groups.94
The eu was the arbiter and also wielded the ‘stick’, as it could impose penal-
ties if a party failed to implement the agreements reached. This function made
it possible to conclude negotiations with often-vague agreements. While the
92 The protests also were motivated by greater dissatisfaction with the government led by
Isa Mustafa.
93 For the content of the agreement, see “Statement by High Representative/Vice-President
Federica Mogherini Following the Meeting of the eu-facilitated Dialogue” (25 August
2015), available at <http://eeas.europa.eu/statements-eeas/2015/150825_02_en.htm>.
94 Interview with Robert Cooper, op.cit. note 44.
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eu provided leverage and the framework for negotiations, Robert Cooper, one
of the main eu negotiators, noted that the eu’s role was less about exerting
direct pressure; “instead [it] generated [agreement] by conversations, through
discussions on what was the common problem”.95 The eu itself also did not
publicize the agreements but, rather, relied on the parties to do so, hoping to
enhance ownership over the agreements.
Arguably, this approach was supplemented by political pressure by the eu
and its member states on both Kosovo and Serbia. In concluding, this article
will explore three mediation techniques that were central to the beginning of
the eu-led process in 2011 and contributed to its success, although also bearing
considerable risks.
8.1 Creative Ambiguity

A particular feature of the agreements between Serbia and Kosovo, culmi-
nating in the 15-point 2013 Brussels Agreement,96 was the creative ambiguity
of not clearly addressing the status of Kosovo. The Agreement does not indi-
cate whether Kosovo is a state or not, the parties are described as “sides”
without further details, and there is no definition of how the Association/
Community of Serb municipalities should be organized—the cornerstone of
the agreement—and what legal status it should have. This ambiguity was a
reflection of the earlier experience during the talks led by Ahtisaari, where
the status designation led to the failure of a mutually accepted compromise.
Later, the designation of the status of Kosovo was less pressing than in 2006
and 2007 when Kosovo had no clear status. By 2011, with widespread interna-
tional recognition, putting the question aside provided space for compro-
mises elsewhere between the two parties. It also led to a number of
consequences for the mediation process, as it precluded the signing of for-
mal agreements and treaties, which would have implied that both parties
had equal status or that the agreement was legally binding. As Nikolas
Gvosdev noted, the agreement drew “on the time-honored principle of ‘don’t
ask, don’t tell,’ [leaving aside] these crucial status issues”.97 This allowed both
parties to present the outcomes in very different ways with the Serbian gov-
ernment arguing that the agreement did not imply any recognition of Kosovo
by Serbia, whereas in Kosovo normalization of relations was seen more as a
95 Ibid.
97 Nikolas K. Gvosdev, “Kosovo and Serbia Make a Deal Debalkanizing the Balkans”, Foreign
Affairs, Postscript (24 March 2013), available at <http://www.foreignaffairs.com/articles/
139346/nikolas-k-gvosdev/kosovo-and-serbia-make-a-deal>.
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314 Bieber
step toward full recognition. By the terminology used (such as ‘border’ or

‘boundary’) and not used (such as ‘state’), the agreements facilitated their
acceptance by both parties.
The ambiguity also was a consequence of the eu’s own complex position on
Kosovo, with some member states not recognizing Kosovo and the eu, thus,
entering talks without a clear road map.98 As noted earlier, however, the
Council conclusions of December 2012 did provide some clarity regarding the
goals which the eu and its member states shared.
Yet, the eu’s position remained ambiguous regarding its demands from
Serbia. While officially it could not seek Serbia’s recognition of Kosovo, govern-
ments and parliaments in some eu member states, in particular Germany,
made it clear that eventual eu accession would require full recognition.
The ambiguity of the mediation extended, however, beyond not addressing
the international status of Kosovo both in content and in form. As Marko
Prelec noted in 2013, the purpose of the process was to “get the parties to com-
mit publicly to an agreement whose content is to be filled in later, often by eu
officials, out of the spotlight. The advantage of this approach lies in making
possible agreements that would be politically deadly if spelled out in black and
white.”99 Such a strategy highlights the difficulties of reaching a completely
articulated agreement that might be difficult to achieve. However, it also pro-
vides the risk of a breakdown in the implementation phase and of the govern-
ment not making a legally binding commitment. As Nikolas Gvosdev notes,
“[t]he strength of [the] agreement, however, is also its weakness. For it to work,
all sides will have to accept certain fictions”.100 The challenge of the process
was the asymmetry for the parties, as the fiction of Serbian control over Kosovo
has fewer ramifications than Kosovo’s governance over Kosovan Serbs. The
absence of a final settlement arguably postpones the resolution of these fic-
tions for the future, the recognition of Kosovo by Serbia and the degree of
Kosovo’s state authority in the north of Kosovo.
As a result, the concept of ‘normalization’, as the process became known,
allowed for technical solutions and agreements that would allow Serbia to not
recognize Kosovo, while settling all other disputes along the way. This detached
substance from the symbolic, with the advantage of allowing for the settle-
ment of numerous technical issues; yet, it also allowed Serbia to maintain the
fiction of retaining Kosovo.

99 Marko Prelec, “The Kosovo-Serbia Agreement: Why Less is More”, International Crisis
Group Blogs (7 May 2013), available at <www.crisisgroupblogs.org/across-eurasia/2013/05/07/
the-kosovo-serbia-agreement-why-less-is-more/>.
100 Gvosdev, op.cit. note 97.
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The postponement of a comprehensive settlement can result in a gradual

process that will build confidence over time or lead to a spiral of distrust, as
has been noted for the Oslo Peace Process between Israel and the Palestinian
authority:
“In fact, the problem with mutual recognition within the Oslo Process
was that it contained ‘destructive ambiguity’. This ambiguity masked
large gaps in each side’s conceptualization of what mutual recognition
meant in practice. Rather than providing reassurance that the zero sum
game was over, ‘destructive ambiguity’ heightened the sense of threat to
the core objectives of both sides and thus contributed to the develop-
ment of a ‘spiral of insecurity’ based on mutual suspicion rather than
mutual trust.”101
8.2 No Finalité
A second feature of the process was that it mirrored very much the eu integra-
tion process by first focusing on technical cooperation and seeking to build
common ground over time. As with the eu, the process has no well-defined
finalité beyond eventual eu membership for both. While the eu insisted on the
settlement of open issues between Kosovo and Serbia, it did not define the
character of the final agreement and whether it would require the full recogni-
tion of Kosovo’s independence by Serbia. Furthermore, the negotiations were
focused on building a process of regular meetings and exchanges. This helped
to build confidence and did not focus on immediate tangible results, as Robert
Cooper noted:
“After the first six or seven dinners, she [Catherine Ashton, the eu High
Representative of the Union for Foreign Affairs and Security Policy] said:
‘Well, I think we are beginning to reach an understanding on this. Maybe
we can start writing it down.’ The agreement that was signed in the end
was not very different from what we had put down initially.”102
Whether Serbia would have to recognize Kosovo might have been implicitly
understood, but it was not spelled out. Thus, rather than spelling out a goal—
autonomy of the north of Kosovo and recognition of Kosovo as a state—the
101 Jonathan Rynhold, “The Failure of the Oslo Process: Inherently Flawed or Flawed
Implementation?”, Mideast Security and Policy Studies (March 2008) No.76, available at
<http://www.biu.ac.il/SOC/besa/msps76.pdf>.
102 Interview with Robert Cooper, op.cit. note 44.
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316 Bieber
talks left face-saving space for the parties. While the 2013 agreement was
rewarded by opening accession talks with Serbia in January 2014 and begin-
ning negotiations for a Stabilization and Association Agreement with Kosovo,
the outcome of the talks is integrated into the eu integration process, as the
normalization of relations with Kosovo is included in Chapter 35 of Serbia’s
accession negotiations.103
8.3 Top-Down Agreements

As Adem Beha rightly points out in his analysis of the agreement, “[t]ranspar-
ency is considered one of the weakest points of the dialogue process”.104 The
agreements have been kept secret, with only the Brussels Agreement105 and
the implementation having been published; none of the others are in the pub-
lic domain. The eu has also not publicized the agreements, and the negotia-
tions took place under the auspices of a small team within the (eeas).106 The
negotiations also had an experimental character, as the eeas had no prior
experience in such a major agreement. It thus took place against the back-
ground of a relatively inexperienced organization under a lot of pressure to
produce a success story.
In fact, the lack of transparency was a deliberate and strategic choice on the
part of the eu to allow both parties to interpret the agreements in a way that
would be beneficial for their respective positions. The talks involved only high-
level government representatives from the beginning. Both parliaments, as
noted above, were informed and provided their support for the agreements.
However, this was a consequence of governments seeking to secure legitimacy
for any agreements rather than eu policy, and parliaments received only mini-
mal information. Considering the vagueness of the agreements, it is in fact odd
that parliament would ratify such an agreement in which all key aspects
remain unelaborated. In keeping with the absence of a comprehensive agree-
ment, the idea of any public vote also never featured on the agenda. Without a
clear end point, there was little to ratify in a referendum, and the risk would
have been considerable that any agreement might be rejected in Kosovo or
Serbia. However, the absence of a public vote on the agreement makes it argu-
ably more easily reversible. As the Kosovar Institute for Policy Research and
Development noted in 2013, the informal and closed-door nature not only
103 European Commission, Progress Report Serbia (October 2014), available at <http://ec.europa
.eu/enlargement/pdf/key_documents/2014/20140108-serbia-progress-report_en.pdf>.
104 Beha, op.cit. note 50, 118.
106 Bassuener and Weber, op.cit. note 84, 6–7.
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infuriated the Kosovan opposition but, also, conflicted with the rules of parlia-
mentary oversight.107 This process thus highlights the larger tension in peace
processes between the expedience of involving only elites in the mediation to
not complicate the negotiations and the downside of entrenching elites and
undemocratic practices.
The most striking aspect of exclusion in the mediation was that of the main
(supposed) beneficiaries of the negotiations: Kosovan Serbs were not part of
the process on either the Kosovan or the Serbian side.108 While they had been
encouraged earlier by Serbia to boycott Kosovo’s institutions, they were now
being pressured by Serbia to participate in elections.109 Yet, their acquiescence
was crucial for the agreement to work. Thus, in practice the agreement reaf-
firmed Serbia’s earlier policies that, largely, had used Kosovo to achieve its own
policy goals, without much care or interest in the opinions or concerns of the
community.110 In fact, the Kosovan Serbs had a great chance of being the ‘spoil-
ers’ of the agreement. However, the tight control by Belgrade and the depen-
dence on financial support from Belgrade enabled the parties to impose the
agreement on Serbs in northern Kosovo, albeit with considerable difficulties.
The imposed nature of the agreement does bear risks, such as the resentment
of Serbs in the northern municipalities and Serb-Albanian relations in Kosovo.
Overall, the Serbia-Kosovo dialogue is a success story based on its own limi-
tations. It neither sought to produce a comprehensive and conclusive settle-
ment of relations between Serbia and Kosovo, nor did it try to transform
Serb-Albanian relations in Kosovo. Instead, the eu seized an opportunity to
gradually build a number of agreements between the two countries that would
result in a long-term process in which relations would normalize and both par-
ties could eventually join the eu. Because of the modesty of its goals, the incre-
mental approach was successful but, also, frustratingly slow and cumbersome.
The radically varying interpretations of the agreements in Belgrade and
Prishtina have done little to improve relations, and both Kosovo and Serbia
continue to view key issues in diametrically opposed ways. It seems unlikely
that a more ambitious approach to mediation, however, would have yielded
these results. Instead, as with many such peace processes, they need to con-
tinue over time and also have a stronger component to bring citizens in and,
107 “The Implementation of Agreements...”, op.cit. note 67, 4.

109 Ernst, op.cit. note 71, 124–5.
110 Florian Bieber, “The Serbs of Kosovo”, in Sabrina P. Ramet, Albert Simkus, and Ola Listhaug
(eds.), Civic and Uncivic Values in Kosovo (ceu Press, Budapest, New York, ny, 2015),
177–200.
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318 Bieber
thus, to broaden its basis. An elite-driven peace process might be a necessity, in

the same way as creative ambiguity in the early phases, but eventually the con-
stituency needs to be broader and clarifications will be inevitable.
In the meantime, there are considerable risks, as became apparent not only
in the crisis in the summer of 2012 but, also, during the nearly one-year break
in negotiations between March 2014 and February 2015. Implementation relies
strongly on the eu and the attractiveness of membership and the accession
process. Overall, the process has not been able to develop a dynamic that
would suggest its durability without eu intervention and incentives.111
Furthermore, the eu has refused to address some contentious issues, such as
the future of the Trepča/Trepçës mines that might yet prove divisive. As such,
the offer of eu-based incentives provided the necessary incentive but, also,
externalized the motivation for moving the agreement and its implementation
ahead. Thus, the eu made itself an indispensable part of the agreement for
better or for worse.
111 Several questions raised in this article merit further research. First, the process of media-
tion between Serbia and Kosovo speaks to the larger question of the sustainability and
impact of ‘fake compliance’: the type of compliance with eu requirements—noted ear-
lier in this work (supra note 32)—that focuses on purely formulaic implementation.
Legislation, thus, is not crafted as a result of domestic support or pressure but, rather,
driven by outside actors—predominantly by eu conditionality during the accession pro-
cess. Both Kosovo and Serbia have committed to reforms and changes to their laws and
policies that lack domestic support and, thus, bear the risk of non-implementation or
superficial implementation. This question is connected to the larger research agenda of
assessing the transformative dynamics of Europeanization and conditionality and the
ability of outside actors to induce meaningful change in the legal and other institutional
systems.
Second, the link established between the ‘normalization’ of Serb-Kosovar relations on
the one hand and, on the other, eu accession—the driving force for this process—mer-
its further scrutiny. In particular, it is important to understand when and how the eu
integration process can encourage such a dynamic—in particular considering that
elsewhere, such as in Bosnia and Herzegovina, these efforts have failed to date.
Third, larger question of merits and risks of ‘creative ambiguity’—in the context of
mediation beyond Serbia and Kosovo and the Balkans—deserves further attention.
While the case of the Serbia-Kosovo dialogue highlights the dangers as well as opportuni-
ties of this approach, comparative research is needed to identify the circumstances under
which it might offer greater advantages than others.
Fourth, rigorous research will be needed into all the available, relevant decisions of
the judiciary in Serbia and Kosovo (and the effects, at least, of landmark decisions ren-
dered by key courts in these two jurisdictions) in order to determine the degree of compli-
ance of these states with the obligations which they have taken upon themselves under
instruments such as the 2013 Brussels Agreement.
0002622495.INDD 318 301961 11/9/2015 7:57:03 PM

Considering the crisis in the eu and the reduced support for enlargement
within the eu, this process is not to be taken for granted. In Serbia, the govern-
ment has been displaying a number of authoritarian features that could set
it on course for a confrontation with the eu; in Kosovo, Vetëvendosje remains
a strong rejectionist party. It is, however, unlikely that it will govern alone,
and in a coalition its rejection of the agreements with Serbia are certain to be
moderated.
A key challenge will emerge when creative ambiguities require resolution. It
seems unlikely that Serbia would be able to join the eu without a formal agree-
ment or treaty with Kosovo that included some degree of recognition. The
postponement of difficult decisions has been both a feature of decision-mak-
ing in the eu itself and its strategy for tackling the dispute between Serbia and
Kosovo. Whether this gradualist, process-oriented approach marked by cre-
ative ambiguities will become a successful model of conflict resolution
depends on the ability to convert silences into clarity and the formalization of
relations at the end of the process.
Acknowledgements
The author would like to thank Leon Malazogu, Valerie Hopkins, Miruna
Troncota, and the peer reviewers for their useful comments and suggestions.
This article first was presented at the workshop “Kosovo as a Member of the
International Community: Accession to International Organizations” held in
March 2014 at the University of Graz and organized by the Faculties of Law of
the University of Graz and Prishtina.
0002622495.INDD 319 301961 11/9/2015 7:57:03 PM

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review of central and east european law

The Serbia-Kosovo Agreements:

The agreements between Serbia and Kosovo—mediated by the eu since 2011—consti-

conflict resolution – European Union – interethnic relations – Kosovo – Serbia

© koninklijke brill nv, leiden, 2015 | doi 10.1163/15730352-04003008

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review of central and east european law 40 (2015) 285-319

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Since Kosovo declared its independence in 2008, the number of countries

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2 International Mediation over Kosovo

The eu-led negotiations between Serbia and Kosovo since 2011—resulting in

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3 eu Mediation and State-Building

The European Union has a considerable record of mediating in former

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26 Sofia Sebastian, “The Role of the eu in the Reform of Dayton in Bosnia-Herzegovina”,

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capacity available to most national governments dwarfed the new institutions

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4 On the Path to a Serbia-Kosovo Dialogue

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by President Tadić, sought eu integration as its primary goal, Jeremić’s bellig-

36 icj Advisory Opinion, op.cit. note 11.

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“The National Assembly expresses its full commitment to achieving […]

“The un General Assembly welcomes the readiness of the European

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of dialogue in itself would be a factor for peace, security and stability in

5 The Beginning of eu-Mediated Talks

42 un General Assembly Resolution “Request for an Advisory Opinion of the International

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44 “The Brussels Agreement ‘Generated by Conversations, Not by Relentless Pressure’,

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form. By engaging in dialogue, Serbia also sought to avoid pressure to recog-

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among Albanians from Serbia enrolled in universities in Kosovo and only

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the agenda. The Integrated Border Management (ibm) agreement concluded

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