What could a Serbia-Kosovo border swap achieve?

Could a border swap resolve the dispute between Serbia and Kosovo? Photo: Julian Nitzsche (CC) commons.wikimedia.org

Many agreements were intended to pave the way to a settlement between the two countries that would allow for both to join the EU and normalise their relations. Today, many aspects of the agreements have been only partially implemented and key provisions, such as the Association/Community of Serb Municipalities, remain on paper. Beyond the formal implementation, the many steps already taken have not led to greater trust or co-operation between Serbia and Kosovo. Serbia has continued to actively sabotage Kosovo’s efforts to join international organisations and achieve wider international recognition while relations remain frosty.

Cost of the status quo

What “normalisation” meant has been clear for years: some form of Serbia recognising Kosovo’s independence and opening EU accession for both. Yet, the clarity of the goal has not made the resolution easier. In particular, in Serbia, the incentives for an agreement have been diminishing. Firstly, EU accession is today more remote than it was even a few years ago. Enlargement sceptics, such as France and the Netherlands, have explicitly signalled that it is unlikely for any Western Balkan country to join the EU anytime soon. Second, enthusiasm for the EU has been on the decline at home with 38 per cent of the population believing that their country will never join the EU and only a slight majority of 55 per cent favouring membership. This drop takes the pressure off the government to pursue EU integration. In fact, the drop was, in part, the result of a deliberate policy of the ruling party which, despite rhetorical commitment to European integration, has had its loyal media, such as TV Pink and the tabloid Informer, take a strong anti-western tone for years.

For Kosovo the cost of the status quo has been increasing. It lacks visa-free travel and there has been no movement on the five EU states which do not recognise Kosovo. Internationally, Kosovo has also failed to make leeway in terms of recognition. Thus, without EU prospects and UN membership, Kosovo is stuck. In this mix, volatile governments and tense relations create the perception of an untenable status quo.

And here enters the idea of the border swap. The idea of changing the borders of Kosovo has been around in the Serbian debate since the 1990s, but was never seriously discussed internationally. During the Ahtisaari talks and the subsequent negotiations of the Contact Group in 2007, explicitly precluded was the partition of Kosovo or its union with another state, i.e. Albania. This has been the core principle of international engagements in Kosovo and the negotiations between Serbia and Kosovo until last year. It is not yet entirely clear how the genie got out of the bottle, but in the Austrian Alpine resort of Alpbach, the presidents of Serbia and Kosovo, for the first time, publically contemplated the concept of a “correction of borders”.

The surprise was both the endorsement of Kosovo’s president, Hashim Thaçi, of such an idea which had earlier been an anathema for Kosovo, and the limited critique elsewhere. Key EU officials, including the chief negotiator and EU High Representative, Federica Mogherini, and the EU Commissioner for Enlargement, Johannes Hahn, endorsed the idea as long as it was mutually agreed and would not set a precedent for other countries. Similarly, the new US national security advisor, John Bolton, endorsed the idea with the argument echoed widely that “We would not stand in the way and I don’t think anybody in Europe would stand in the way if the two parties to the dispute reached a mutually satisfactory settlement.” Other endorsements came from key EU members, some publically and others quietly, including France and Austria. The main opponent of such an arrangement was Germany. Strong German objection to a border swap appeared to put the debate to rest. Yet border changes remain on the agenda.

Better than no deal?

Over recent months, talks have continued, in part helped by the EU as well as through informal channels of mediation. The closed-door approach means that little is known of the process. Meanwhile, some commentators, including Ivan Krastev in an opinion piece for the New York Times, and a lobbyist for the Serbian government, such as former Bosnian High Representative Wolfgang Petritsch, among others, have argued in favour of the border changes. The core argument focuses on the need to end the status quo and any acceptable deal is better than no deal, as the current stalemate brings risks of instability. This is a viable point, as the continued paralysis highlights that the negotiation process before the rise of the partition/land swap idea had stopped yielding results. While the concept of a border swap is problematic, it is undoubtedly true that a new approach is needed.

The other argument is the notion that the border changes are mere “corrections” and, in the words of Thaçi, would “not be a correction along ethnic lines; Kosovo will continue to be a multi-ethnic country and to support minority rights”. The terminology is mostly symbolic and without a concrete proposal on the table it is difficult to assess. However, most discussions have argued that at least the four northern Kosovo municipalities with a Serb majority – North Mitrovica, Leposević, Zubin Potok and Zvečan – would become part of Serbia. In exchange, some Albanian-populated municipalities in Serbia have been mentioned, such as Preshevo. While this would, of course, leave Serbs in Kosovo, and Albanians in Serbia, the obvious and explicit goal of the border swap is to make both states more homogenous and have fewer citizens from the other group. It is insincere to deny that these borders are drawn on the grounds of anything else but ethnicity. The fact that many, if not most, Serbs would remain in Kosovo is a challenge. It will be harder to safeguard a Serb minority of maybe three per cent with the same level of minority rights protection than a community twice the size (as there are no reliable census numbers, the number of Serbs in Kosovo is an educated guess).

Finally, Bolton’s argument that a mutually acceptable deal should be accepted by the international community appears convincing, as Krastev suggests “telling elected leaders that they cannot shape relations between their countries isn’t a great idea”. There are a few caveats, however. First, the very reason that there have been red lines in previous negations is to prevent solutions which lead to undesirable outcomes from an ethical perspective. In essence, it is a classic populist argument that leaders can do what they want and should not be restrained by rules. At the state level, in liberal democracies, rules and norms hold elected leaders in check and limit their power. The international level has fewer such restrictions, yet even here human rights and other principles can help to prevent negotiated outcomes that are problematic. Imagine leaders in a conflict agree to swap populations, as Greek and Turkish leaders did in 1923. That would clearly not be an acceptable solution, even if mutually agreed. Thus, mutual consent cannot be the only a yardstick by which to assess an agreement. This argument does not suggest that border changes are identical to population exchanges, but it does hold that these changes will result in normative and other repercussions which can serve as reasonable restraints to a negotiation process. Furthermore, there is considerable opposition, especially in Kosovo, suggesting that the two presidents are not enjoying unconditional support, nor can one ignore the undemocratic environment in which Serbian President Aleksandar Vučić is operating.

More to lose than gain

Could a border swap resolve the dispute between the two countries? If accepted, such changes could allow Serbia to recognise Kosovo as a country, with President Vučić selling the territories gained as a victory. This leaves a crucial question for Kosovo unresolved, namely, the non-recognition by Spain, Romania, Cyprus, Greece and Slovakia. Some have contemplated recognition or come close to changing their position; thus any agreement might be enough to pull them to the other side. However, not all are likely to follow suit; in particular Spain has been adamant about not recognising Kosovo. Border swaps are not expected to alleviate the concerns of the Spanish position that Kosovo would set a precedent for its own dispute with Catalonia.

In the United Nations, it is unclear whether Russia and China would shift their positions. For Russia the end of the conflict would diminish its leverage over Serbia and also prevent it from making Kosovo part of some future bargain over Crimea. China might also stick to its principled opposition. Kosovo thus risks losing territory and gaining little concerning the international acceptance it is looking for. Similarly, the tensions between both countries have highlighted that neither governments are interested in improving relations and instead benefit from stoking the fire of tension. Thus, a border change might become a cold peace based on mutually beneficial antagonism, as has often been the case with such an antagonistic peace agreement that emphasises separation and reinforces division rather than co-operation. 

A key question regarding the border swap is whether it would have a knock-on effect. In particular, in Bosnia, the government of Republika Srpska has been seeking greater autonomy and Milorad Dodik, the Serb member of the state presidency and vocal nationalist, has argued for breaking up the country. His party and the entity have engaged in extensive lobbying in Brussels and Washington for this cause. Legally, it could be argued that a mutually agreed change of borders is sufficiently different from changing borders unilaterally, as Republika Srpska desires. After all, two sovereign states are able by agreement to change their mutual border, while sub-units cannot secede. From the perspective of Serbia and Republika Srpska, this looks very different, as Kosovo is similarly a seceding territory, and in the eyes of Serbia it is not negotiating with a country.

An agreement between Kosovo and Serbia could (and if it were to happen, should) make the sui generis nature of the agreement explicit and Serbia could re-commit itself to the territorial integrity of Bosnia. Politically, however, it would be difficult to not signal that the redrawing of borders based on ethnic criteria rather than pre-existing boundaries is possible. It probably would not trigger an immediate push for independence, secession or border changes, but would send a signal that border changes and ethnically (more) homogenous territories can be achieved with enough persistence.

Slim odds

Keeping these risks in mind, the coming months and years might be rocky for Serbia and Kosovo. The dialogue has deflected a lot of attention from domestic developments, with Serbia being a competitive authoritarian regime led by a president and party that have sidelined and denigrated the political opposition, captured state institutions, promote hate speech and weaken checks and balances. In Kosovo, the political system has become unstable and fragile and is also based on weak institutions. While an agreement can move EU attention to the democratic deficiencies in both countries, leaders are also seeking to use an agreement to maintain their domestic and external legitimacy and thus dominance.

Border swaps seem difficult to achieve considering that the devil is in the details – not just of how to draw the new borders or how to provide safeguards to minorities, but also how to unlock the recognition dilemma for Kosovo. Considering that EU mediation is going to go into hibernation soon and the US is an erratic, not strategically committed negotiator under President Donald Trump, the odds of a deal seem slim. However, due to the closed-door nature of the talks, it remains hard to assess.

The risk is that the failure of these talks would end negotiations for a year until a new commission has found its bearings. It will also need to come up with a new framework, and with border changes being the elephant in the room, it will be difficult to deflate the elephant to turn him again into a mouse. Thus, the willingness of the EU to endorse a discussion of border changes risks not putting an end to the open disputes in the region and ending the volatile status quo. Instead, it might help unravel the post-war peace order and promote a value-free “art of the deal” in the Balkans.

Florian Bieber is a professor of Southeast European history and politics at the University of Graz as well as co-ordinator of the Balkans in Europe Policy Advisory Group (BiEPAG).  He tweets at @fbieber.

Balkans, Serbia