Contested statehood, complex sovereignty and the European Union's role in Kosovo

ABSTRACT

The emergence, longevity and resilience of contested states have redefined the relationship between sovereignty and territoriality. While fully-fledged states uphold the monopoly of authority, contested states seek to rewrite the sovereignty playbook and gain a seat among sovereign equals. This atypical antagonism, propped up by post-Westphalian statehood aspirations, has changed the way sovereignty is perceived and understood nowadays. Approaching sovereignty as multi-faceted, this article discusses contested statehood in the context of the EU's engagement overseas. Drawing on the literature of Europeanisation and complex sovereignty, it accounts for the influence of contested statehood on the EU's role and policies in contested states. Specifically, by delving into Kosovo's complex sovereignty (internal/external), the analysis measures the fluctuating impact of contestedness on the EU's employed policy frameworks and deployed crisis management tools unfolding a paradox that has defined the EU's foreign policy in Kosovo for years.

KEYWORDS:

• Contested statehood
• Kosovo
• contested states
• EULEX
• Europeanization
• complex sovereignty

Introduction

In the early 1990s, the end of the Cold War and the decline of traditional superpowers recalibrated geopolitical dynamics and reconfigured territorial realities in Europe and beyond. The collapse of the Soviet Union (USSR) and the dissolution of Yugoslavia offered a window of opportunity to new state constellations that aspired to fill the void of power in the wider region. These events went hand in hand with the EU’s own efforts for further integration. The refurbishment of the EU’s constitutional, political and economic instruments aimed to reinforce its leverage and consolidate its regional political magnitude (Lavenex and Uçarer 2004) within the context of a “wider Europe” (European Commission 2002). However, extensive territorial expansion entangled the EU in complex discourses and events such as secession quests, the rise of new statehood aspirations and a multitude of contested states that painted the scene of its immediate vicinity.

Drawing on the literature of Europeanization and debates on sovereignty and recognition, this article investigates the impact of contested statehood on the EU’s diplomatic and institutional engagement in Kosovo. In particular, it accounts for how contestedness influences the role, policies and initiatives of the EU in Kosovo, and in turn how that influence varies (high/low) depending on the domain it is being exercised in (internal/external sovereignty). Contested statehood is neither a new nor unknown theme to International Relations (IR) and EU scholars. The existing literature has already studied contested states’ pursuit of international recognition (Caspersen 2009) and the reaction of the international community towards competing statehood aspirations (Pegg 1998, Lynch 2004, Ker-Lindsay 2012). In a similar fashion, a large body of scholarship has more recently looked into the pluriverse of the EU’s foreign policy in contested states, focusing on its engagement despite an absence of recognition (Caspersen 2015, Ker-Lindsay 2015), EU-led conflict resolution initiatives (Tocci 2007), diplomatic implications emanating from the absence of recognition (Papadimitriou and Petrov 2012) and EU-sponsored state-building attempts (Bouris 2014).

Although theoretical engagement on the influence of contested statehood vis-à-vis the EU’s foreign policy has been thorough (Börzel 2011, Papadimitriou and Petrov 2012, Kyris 2016, Bouris and Kyris 2017, Baracani 2020, Bouris and Papadimitriou 2020, Kyris 2020) the majority of scholarly work has tended to interpret contested statehood as a unitary, homogenous and highly integrated condition. Contesting this conceptual affirmation, this article approaches the internal and external domains of sovereignty as distinctive premises that, in turn, nurture a tapestry of often paradoxical and not always constitutive outcomes. Taking stock from Grande and Pauly’s typology (2005a) on “complex sovereignty”, this article compartmentalises the internal and external dimensions of sovereignty, aiming to probe how contestedness affects the EU’s engagement and, in turn, how opposing outcomes with either reinforcing or detrimental impact on the EU’s role are generated. This reflexive view departs from the assumption that contested states are uniform regimes, viewing them instead as manifold intellectual devices with sizeable and multi-faceted footprints. For that reason, a thematic dichotomy between internal and external sovereignty is employed, which should offer a higher explanatory output than a conventional, one-size-fits-all analysis of contested statehood.

The contextualisation of this research is heuristically enabled by the case of Kosovo, which approximates domestic statehood and international recognition yet is ultimately unable to cast a veil of fully fledged legitimacy over either of them. In the internal realm, in spite of an uncommonly high level of state performativity (Visoka 2018, 2019), competing statehood claims and overlapping jurisdictions over the predominantly Serbian populated areas of Northern Kosovo, a lack of manifest territorial contiguity and a certain degree of administrative fragmentation demonstrate the unconsolidated nature of its statehood (Risse 2015, Vulović 2020). In a similar fashion, although Kosovo renders an impressive run of diplomatic recognitions (117¹ in total), the absence of recognition from a large part of the international community² – which ended up being divided over Kosovo’s recognition (Baracani 2020) – along with a lack of UN membership (Geldenhuys 2009) largely makes it a contested state.

The contribution of this article to the discussion of contested states is twofold. Compared to the existing literature which approaches contested statehood as an integrated condition with a unitary effect, this article employs a thematic dichotomy (internal/external sovereignty) to discuss the multidimensional influence of contested statehood on the EU’s engagement. The clustered analysis offers a better grasp of the multi-faceted (unconsolidated statehood and unfinished international recognition) nature and oscillating effect (high/low) of contested statehood, determined each time by the aspect under scrutiny – diplomatic (high politics) or technical (institution-building). Secondly, assuming that sovereignty is not entirely monopolised by sovereign states, it delineates the atypical trajectory of contested states towards fully fledged statehood (internal sovereignty) and international recognition (external sovereignty). While doing so, it gauges the influence of contested statehood on the attitudinal (narrative) and behavioural (policies) paradigm of the EU in areas with competing statehood claims. This allows for delving into the pluriverse of the EU’s decision-making, intra-EU balances, and conflicting expectations unfolding the way EU operates in areas marred by contested statehood.

The primary sources for this research consist of official documents, policy papers and press reports complemented by a questionnaire and semi-structured interviews with Kosovan and EU officials conducted July 2021. The questionnaire was composed of short statements and functioned as corridor data, preceding interviews. The interviews were held in a semi-structured format with open-ended questions allowing for fluid conversation. The methodological approach consisted of a mixed method of qualitative (analysis of non-numerical data) and quantitative (survey) research. This was coupled with a case study enabling detailed scrutiny over certain phenomena (Kosovo’s internal and external sovereignty) in their natural, normal condition (contested statehood) and in correlation with the overarching theme (EU engagement) around which the research is centred.

Throughout the whole process, the Chatham House Rule applied and anonymity in contributions was ensured when and where requested by interviewees. Both the questionnaire and interviews were conducted using online tools due to restrictions emanating from the pandemic. The selected interviewees were Kosovan representatives/officials, Kosovo-based EU officials and Brussels-based EU administrators. The aim of these interviews (seven in total) was to triangulate data collected through secondary literature, as well as to shed light on the empirical manifestations at the diplomatic and technical levels of the EU’s engagement in Kosovo.

Aiming to adequately answer how contestedness influences the EU’s role, policies and initiatives in Kosovo and, in turn, how domestically induced factors attributed to internal sovereignty and externally evoked dynamics inherent to external sovereignty present significantly diverse consequences for the EU, the article is organised as follows. The first section is a discussion of the emergence of contested states and the transformation of sovereignty over time. Based on that, the second part elaborates on the relationship between Europeanization and the framework of “complex sovereignty”. This framework is applied to the empirics which include a thematic division between the EU’s diplomatic position and policies towards Kosovo and the efforts to build up viable domestic structures via the EU’s Rule of Law Mission in Kosovo (EULEX). The article concludes by presenting the paradoxical fluctuation of influence that the contested internal and external sovereignty of Kosovo exert on the EU’s engagement.

Sovereignty and the emergence of contested states

For decades, sovereignty has been the single currency of the international system and the most fundamental element of the state-based international order (Lake 2003). Lying at the heart of international relations, it ensures supremacy in public affairs and monopoly of law enforcement, policy-making, international representation and use of force for the sovereign (Kurtulus 2005, p. 88). Essentially, it represents the potent bedrock of international politics, and it is often construed through territoriality (Kratochwil and Ruggie 1986, Werner and De Wilde 2001). Indeed, the territorial calculus serves as a backbone of statehood: it represents the absolute and uncontested control of a state actor over a certain territory and enables the spatial expression of power (Eudaily and Smith 2008, p. 312) by asserting the territorial integrity of the sovereign (Berg 2009, p. 224).

While classical interpretations understand sovereignty as rigid with fixated principles and impregnable rules, contemporary outlooks openly contest this argument (Kyris 2022). For political scientists, sovereignty is viewed as an acknowledgment of mutually recognised state entities whose absolute political authority and territorial control are ascertained and reciprocally recognised. For legal scholars, sovereignty is an intact notion (Willoughby 1924) in the form of a system of values whereby legally binding decisions are taken exclusively by the sovereign claimant of power. For IR scholars, on the other hand, interpretations of sovereignty can vary depending on the employed epistemology and school of thought. For instance, when sovereignty is viewed through the lens of constructivism, it is conceptualised as a socially constructed norm reflecting membership in a club of equal sovereigns (Krasner 2001), while when viewed from a neorealism perspective, it is understood as the effect of the anarchical structure of the international system (Waltz 1979, p. 77).

Although each discipline presents its own conceptions and approach, more critical scholarship endorses a different outlook when defining the actual composition of sovereignty. For instance, political geographers have revisited the link between sovereignty and territory following the decline of long-standing empires, quests for self-determination and the emergence of transnational and supranational organisations. In particular, the ever-increasing power of societies to communicate, cross-border crime networks and major environmental challenges with transnational repercussions have steered debates where the relation between sovereignty and territory is provisional or sometimes even conditional (Agnew 1994, 2005, Forsberg 1996, Kuus and Agnew 2008, Sassen 2013). Agnew (1994) is the most prominent representative of this school of thought whose intellectual premise is gravitated around the conditional nature of territory when defining sovereignty. According to this work, territory is not a sine qua non-condition for sovereign statehood, because while states might be surrounded by borders, their institutional character and footprint is global. On a similar note, and inspired by the conceptual breakthrough of political geography, several scholars have approached sovereignty as a transnational and hybrid element (Coleman and Grove 2009), others have revisited the concept in view of new state trends of globalisation (Steinberg 2009, Newman 2010) while some have even referred to the inauguration of a new stage in international relations “beyond Westphalia” (Lyons and Mastanduno 1993).

Far from being a radical assumption that state actors have become an anachronism or that classical sovereignty has become entirely obsolete, this analysis suggests that traditional interpretations of sovereignty might have been ignoring essential proponents of a newly emerging international environment (Grande and Pauly 2005b). The myriad examples of new types of regimes, international and transnational networks and multi-level systems of governance illustrate that sovereignty is being gradually reconstituted (Grande and Pauly 2005a). This development has been underplayed by conventional theorising for a considerable amount of time.

Inspired by this contemporary articulation, this research understands contested states as polities which embrace state-like functions, though residing outside the territorial logic of conventional sovereignty and operating in “gaps” between and across recognised states (Mandaville 1999). Marked by legal uncertainty and precarious international standing (Kurtulus 2005), they are largely perceived as new constellations of minimal and liminal authority comprised of national and international features that challenge traditional world order and openly compete for a place amongst sovereign equals. Over time, some of them have managed, to various degrees, to develop into “effective” political realities (Lynch 2004) with institutional and statehood features, namely taxation, security networks, state-like structures and embassies (Pegg 1998). For some scholars, this constitutes a new form of state-making in the age of globalisation (Byman and King 2012).

Although academia has coined a variety of terms to capture the trajectory of those entities towards statehood and recognition, namely “informal states” (Isachenko 2012), “unrecognized states” (Caspersen 2013), “pseudo-states” (Kolosov and O’Loughlin 1999), “para-states” (Baev 1998), “quasi-states” (Kolstø 2006), “de facto states” (Pegg 1998, Caspersen 2009), “phantom states” (Byman and King 2012) and “separatist states” (Lynch 2004), this research employs the umbrella term of “contested states” (Geldenhuys 2009). The conceptual agility and overarching notional span of this term succeeds in adequately containing all potential fluctuations that can be detected in contested states’ sovereign formula. With this conceptual clarification established, this article proceeds with an investigation of Kosovo’s complex internal and external sovereignty, seeking to identify how contested statehood influences the EU’s engagement in Kosovo and whether that effect enhances or hampers the EU’s agenda and aspirations in Europe’s youngest country.

Europeanization and complex sovereignty

The new geopolitical landscape that ensued from the collapse of former world superpowers presented an opportunity for the EU to grow its political weight and foster deeper engagement with its near abroad. The increasing involvement both in terms of range (higher number of neighbouring states) and width (policy instruments) has been defined as the process of Europeanization (Börzel 1999, Radaelli 2000, Featherstone and Radaelli 2003), where promotion of the European acquis generates a transformational effect on discourses, structures and policy initiatives at the domestic level. The ability to steer domestic change and enable transformation through policy diffusion attracted the interest of academia into how the EU projects itself vis-à-vis others on regional and global levels (Papadimitriou and Phinnemore 2004). Thus, the theoretical discussion expanded on the EU’s toolbox, ranging from diplomatic means (Common Foreign and Security Policy, CFSP, and Common Security and Defence Policy, CSDP) to conditionality mechanisms (Enlargement policy) (Kyris 2018, Noutcheva 2018) and frameworks for development of closer political, social and economic ties (European Neighbourhood Policy, ENP) (Bouris and Schumacher 2017).

Although the expansion of the EU’s borders in 2004 and 2007 offered wider space for engagement, unfamiliar political discourses, social polarisation and post-war secession narratives often challenged Europeanization beyond the EU’s borders. The heavily disputed, atypical and incomplete state formation of contested states brought to the fore an investigation of their political systems (Kolstø and Blakkisrud 2008), structural characteristics (Geldenhuys 2009, Caspersen 2013) and perseverance despite an absence of recognition (Florea 2014). This involved considering what sort of entities contested states are, and what kind of challenges they can perhaps pose to the EU. Meanwhile, in response to the increasing importance of this matter, scholars focused on the institutional capacity of the EU to deal with those entities effectively (Caspersen 2018, Ker-Lindsay 2018), the impact of the EU on conflicts (Tocci 2007, Whitman and Wolff 2012, Noutcheva 2015, 2020), state-building attempts (Bieber 2011, Bouris 2014), external governance (Schimmelfennig and Wagner 2004, Schimmelfennig 2009, Bouris and Schumacher 2017), engagement without recognition (Caspersen 2015, Ker-Lindsay 2015), the way domestic actors perceive the EU (Popescu 2007) and the EU’s impact on various conflicts within and outside EU territory (Diez et al. 2006).

Similarly, there has been an extensive gauging of the influence of contested statehood on the EU’s role and policies in contested states, spanning from ontological perspectives regarding the stature of the EU (Bouris and Papadimitriou 2020) to analyses focusing on entanglements attributed to internal and external factors that are viewed as unitarily composed (Papadimitriou and Petrov 2012). Emphasis has also been given to the encounter of Europeanization with limited statehood (Börzel 2011) and the EU’s post-conflict management in contested environments (Kyris 2016, Kyris 2020). Further afield, scholarly debates have engaged with several cross-cutting themes discussing the role of the EU at the highest diplomatic level. In this regard, there have been a multitude of studies on the role of the EU as mediator (Visoka and Doyle 2016, Bergmann 2018, Gashi 2021), in steering and recontextualising initiatives and expectations (Gashi et al. 2017) and in projecting actorness through state-building (Baracani 2020) in states with unconsolidated (internal or external) sovereignty.

Against this backdrop, this research employs the concept of “complex sovereignty” as the main theoretical blueprint, which enables a thorough probe into the influence of contestedness vis-à-vis the role, policies and institutional initiatives of the EU in contested states (Grande and Pauly 2005a). In fact, this typology sheds light on a new sovereign architecture that is embroiled within a complex system of multiple, overlapping hierarchies (Grande and Pauly 2005b). In practise, this system shows that legitimacy and sovereignty are not as absolute and exclusive as Bodin (1992) argued three decades ago. Precisely, the conceptual framework of “complex sovereignty” asserts that:

Multi-level systems of governance, international regimes, policy networks, and transnational policy spaces manifest new, unique types of governing arrangements […] This transformation affects the basic institutions, principles, norms, and procedures of contemporary policymaking. (Grande and Pauly 2005b, p. 7)

By transposing contested statehood into the context of the above-mentioned framework, and by stretching the conceptual width of “complex sovereignty” further, a new, atypical type of governance that claims an increasing role in the post-modern architecture of sovereignty (Grande and Pauly 2005b) is hereby inspected: that of contested states. In order to fully operationalise this relationship, “complex sovereignty” elucidates the discursive elements of contested statehood and categorises its influence on the internal and external domains of sovereignty in a distinctive manner. Premised on a thematic distinction (internal/external), “complex sovereignty” allows for the better capture and exhibition of the significant gradation, different levels of development and divergent outcomes (Grande and Pauly 2005a) that internal and external sovereignty can present when interacted with contested statehood.

Kosovo offers all necessary elements for the proper operationalisation of “complex sovereignty”. Unlike other contested states, it exhibits advanced sovereign traits, though without the adequate level of legitimacy that confers fully fledged statehood and international recognition. More specifically, in the realm of international recognition, Kosovo has secured 117³ recognitions showcasing outstanding diplomatic performativity (Visoka 2018, 2019). This reveals a certain degree of consolidation that many contested states are unable to demonstrate. Nevertheless, the absence of recognition by a significant part of the international community (Kosovo is recognised by fewer than two-thirds of UN Member States) limits the prospect of a breakthrough, keeping the world divided as regards its independence (Baracani 2020). Similarly, although the Kosovan government seems to effectively control the largest part of its borders, a lack of territorial contiguity and administrative division in the predominantly Serbian populated northern parts of the country have shaped a complex situation. Overlapping jurisdictions, the inability of Pristina to claim full executive control and the reluctance of the northern population to abide by Kosovan legal provisions bring forward a variety of elements that manifest unconsolidated domestic statehood (Risse 2015).

As mentioned above, this article approaches Kosovo’s “complex sovereignty” thematically. The first part relates to external sovereignty and gauges the EU’s diplomacy, namely institutional representation and policy instruments deployed within the margin of its foreign policy course. The second part relates to internal sovereignty and revolves around EULEX, a notable case of a civilian mission responsible for institution-building and enhancement of the rule of law. The rationale behind the dichotomy (internal/external) serves as the preliminary assumption that the effect will perhaps oscillate, depending on the aspect under scrutiny. For instance, when zooming in on symbolism and references with heavy political connotations, the effect of contested statehood is expected to rise, given the dominant presence of EU Member States (MS) in the respective mandated bodies. Conversely, the effect on the day-to-day business is likely to reflect minimal influence, since the focus is transposed from high politics to the on-the-ground technicalities which are often shaped but not entirely determined by decisions at the highest political level.

The EU’s engagement in Kosovo: prospects and limitations in view of Kosovo’s complex sovereignty

Diplomatic fragmentation: intra-EU antagonism and contested statehood

In principle, the undisrupted exercise of authority, free of external interference, which has been ascertained with wide recognition by the majority of international, sovereign actors, is the most distinctive property of external sovereignty. For Kosovo, the contestation of its external sovereign attributes dates back to the breakup of Yugoslavia when the political and territorial downgrade engineered by Serbia opened the pandora’s box, reigniting independence aspirations in a historically sensitive area like the Balkans. With the prospect of an immature secession doomed to fail, Serbia’s reluctance to settle the dispute peacefully descended Kosovo into chaos as inter-communal clashes escalated. In light of disproportionate violence erupting across the country, the United Nations Security Council (UNSC) voted for the establishment of an international administration, inaugurating Kosovo’s supervised endeavour towards statehood.

Despite the consistent efforts of the mission, overlapping statehood aspirations soon clashed in the 2006 UN talks. Belgrade’s vision for Kosovo resembled Hong Kong’s type of independence, a sort of “one country, two systems” summed into a “more than autonomy, less than independence” scheme (Berg 2009, p. 222), whereas Kosovo Albanians would settle for no less than independence. Following the political stalemate in the UN and the inability of the international community to offer a sustainable territorial and political settlement (Ahtisaari Plan), Kosovo unilaterally proclaimed independence in 2008.

The unilateral act generated contrasting reactions worldwide. Serbia called for an international boycott, seeking to undermine the legal and political legitimacy of the declaration. Several major international players, namely Brazil, Argentina, Mexico, South Africa, Morocco and Russia, supported the petition. On the other hand, the United States, Canada, Australia, Japan and Turkey recognised independence, offering to Kosovo the rare prerogative of being recognised by key great powers (Visoka 2019). For the EU, the Kosovo question was all but simple. The independence declaration led to competition between the legal order and human protection (Newman and Visoka 2019), and epitomised the clash of two substantial international legal principles: people’s right to self-determination, and the protection of states’ external sovereignty. Over time, the EU has found itself supporting multilateral order and territorial integrity, while at the same time it has traditionally been a strong advocate of self-determination. This nuanced approach is predominantly reflected on in its policy-making in Kosovo.

On the one hand, the EU supported the UN-backed process of supervised independence (Brosig 2011). Within the remit of the United Nations Interim Administration Mission in Kosovo (UNMIK), it assumed the portfolio of economic reconstruction, and upon UNMIK’s departure, it seized the opportunity to enhance its regional engagement with deployment of policy instruments and institutional capabilities. The EU’s engagement consisted of a double-hatted entity overseeing the settlement endeavours (International Civilian Office representative/European Union Special Representative (ICO/EUSR)), a CSDP civilian mission responsible for the enhancement of the rule of law (EULEX) and the European Commission’s Liaison Office (ECLO) transmitting the message of the EU to domestic society and institutions.

On the other hand, five EU MS (Spain, Greece, Slovakia, Romania, Cyprus) have been fierce opponents of Kosovo’s independence due to the perceived violation of long-standing, international legal norms safeguarding state borders. Under the pretext of incompatibility with international legal standards, certain EU MS aim to prevent the potential precedence of a seceded entity making it into the world of sovereign actors (Greiçevci 2011). Namely, domestic unresolved issues – secessionist voices (Spain), sizeable minorities (Slovakia, Romania), similar contestation events (Cyprus), or ethnic and religious ties with contesting parties e.g. Serbia and the Republic of Cyprus (RoC) (Greece) – seem to determine national agendas in conferring recognition (Noutcheva 2009).

The intra-EU cleavages stemming from Kosovo’s contested statehood have had profound influence on certain aspects of the EU’s engagement. The latter was majorly impacted in 2010 when the UN General Assembly Resolution 64/298 foresaw the establishment of a Dialogue between Kosovo and Serbia to be facilitated by the EU aimed at establishing “peace, security and stability in the region” (United Nations General Assembly 2010). The resolution welcomed the EUs readiness to assume a mediating role in the discourse of normalisation which was back then, considered as a unique opportunity for settling Kosovo’s status once and for all (Baracani 2020). However, with the beginning of its mediating mandate, the EU deviated from its initial priorities. The priorly hegemonic course of action of the EU that comprised of the development of domestic structures and internal institutions seemed to fade and gradually, get deprioritised (Newman and Visoka 2019). Instead, priority was given to the normalisation process which was streamlined through an atypical “conditionality” in view of an EU membership prospect for both countries. Making that prospect an ultimate foreign policy priority, forced both Kosovo and Serbia to succumb into a system of “reward” highly contingent on the progress marked in the context of normalisation (Gashi 2021). This is validated by the launching of negotiations for accession (Serbia) and the Stabilization and Association Agreement (SAA) of Kosovo which took place only after the conclusion of a set of – legally dubious – technical provisions (what is nowadays colloquially known as “Brussels Agreement”⁴) within the framework of the Dialogue (Gashi et al. 2017).

What is more, limitations emanating from Kosovo’s contested statehood led the EU to perform a sort of “recontextualisation” (Van Leeuwen and Wodak 1999, Gashi et al. 2017) of the Dialogue and downgrade the status of interolocutors from state agents to mere contracting parties. The EU performed what Gashi et al. (2017) define as “sovereignty mutation” stripping off the sovereign veil from both countries due to Kosovo’s lack of recognition from certain EU MS. What is more, the EU never claimed the role of “mediator” in the process but rather assumed the role of a distant mentor ensuring facilitation of the Dialogue by proxy while satisfying those who were not keen on engaging more than necessary (Gashi 2021).

These developments puzzled Kosovans and left many researchers wonder as to what the goal of the EU in Kosovo was. Was it the reconciliation, a meaningful normalisation in view of European prospect, the downgraded course of institution-building which was still ongoing with the deployment of EULEX in Pristina or convenient, policy workarounds that would satisfy intra-EU antagonism while promoting an image of credible and coherent international actor abroad? What is perhaps fair to argue is that the manipulation of the Dialogue by the EU left no room for actual reconciliation, neither space for agreement over the status of Kosovo, squandering a unique opportunity for the EU that can be to a large extent, attributed to Kosovo’s contested statehood.

The impact of contested statehood is also reflected on in symbols, references and terminology. Since 2012, Kosovo’s representation in regional forums has only been permitted with an “asterisk reference”⁵ followed by a distinct footnote underlying its special status. Similarly, terminology is carefully calibrated and deliberately abstract in order to distinguish the uncommon European prospect of Kosovo from the typical “European integration” of other candidate states for accession (Interview with EU Official A). Precisely, the European trajectory of Kosovo has been termed as an “EU approximation process”, an “EU path” or a “European perspective” (European Commission 2009), which yielded the highly ambiguous status of “potential candidate” as a result of the EU’s segmented diplomacy on this matter (Council of the European Union 2015). Additionally, the entirety of European institutions and capabilities in Kosovo are deployed as “status neutral”, at a lower rank than ordinarily, or under special circumstances (Interview with EU Official F). For instance, the EU is represented by an “Office” instead of a fully fledged delegation as it is in every other Western Balkan state. The presence of the EU Special Representative (EUSR) and EULEX demonstrates the peculiarity of Kosovo which is viewed as an “unfinished project” with an ongoing crisis (Interview with EU Official E). Indeed, the presence of the EUSR and EULEX undoubtedly classifies Kosovo as an area with an “unsettled dispute” where recognition, statehood and borders remain subject to a final agreement between interested parties. The deployment of EUSRs in war-torn regions (Bosnia & Herzegovina, central Asia, Horn of Africa, Middle East) and CSDP missions in high-conflict zones with protracted hostilities (Georgia, Palestine, Moldova, Ukraine, Bosnia & Herzegovina, Mali, Niger, Central African Republic, Somalia, Iraq and Libya) mirrors the perception of Kosovo within the EU and illustrates why institution-building and crisis management have been the only course of action unanimously approved by the EU MS in Kosovo (Interview with EU Official A).

Furthermore, contested statehood has severely affected the EU policy instruments pertinent to Kosovo’s path towards EU membership. Unlike other SAAs in the Western Balkans, the SAA between the EU and Kosovo is peculiar in many ways (Interview with EU Official E). First and foremost, the agreement was solely signed by the EU institutions (Council of the European Union 2015). The absence of the EU MS from the list of contractual parties puts the eligibility of this agreement into question and leaves many wondering whether it is a fully fledged agreement or a declaration of intent (Interview with EU Official F). In addition, the highly nuanced status of “potential candidate” which, as mentioned above, is carefully calibrated to reflect a certain degree of ambiguity, follows the same logic. It looks more like a symbolic gesture than an actual indication that Kosovo’s route towards accession that has begun or might begin any time soon. In reality, the potential prospect of membership can only switch to actual “candidate status” if EU MS unanimously recognise Kosovo’s independence – which for the time being, seems a highly unlikely scenario.

Furthermore, the Visa Liberalization Dialogue is yet another instrument where contested statehood-induced limitations are observed. Despite Kosovo’s remarkable compliance with conditionality requirements – 95 conditionality prerequisites have been agreed upon with the EU (Interview with EU Official C) – and the European Commission’s positive recommendation (European Commission 2018), visa waiver has been halted. Under the pretence of unsatisfactory performance in migration, and the fight against organised crime and corruption (Interview with Kosovo official), the visa discussion has completely transformed into a political matter, being more of a politicised debate rather than mere fulfilment of technical (conditionality) prerequisites.

Lastly, contested statehood has exerted considerable influence on the institutional representation of the EU in Kosovo. The fragmented political discourses compromised EU reporting lines and thwarted inter-agency coordination (Mutluer and Tsarouhas 2018, pp. 428–429). As Papadimitriou and Petrov (2012) argue, while the Head of EULEX was reporting to the Council of the European Union (CoEU), the ICR – former EUSR – was reporting to the CoEU and to a group of EU MS recognising Kosovo (International Steering Group). The parallel reporting lines revealed the lack of a mutually reinforcing working scheme which, together with the absence of horizontal coordination, impeded the work of the EU in Kosovo. For instance, EULEX’s narrow reporting lines often left the Directorate General for European Neighbourhood Policy and Enlargement Negotiations (DG NEAR) and other relevant entities out of the loop in official correspondence. Hence, European Commission officials working closely to EULEX had to circumvent formal communication channels in order to acquire information about EULEX’s progress and activities from the European External Action Service (EEAS) or the Civilian Planning and Conduct Capability (CPCC) (Interview with EU Official D). In addition, CoEU decisions pertinent to EULEX often disregarded the opinion/feedback of the European Commission or DG NEAR, hampering the alignment and synchronisation of EU capabilities in Kosovo but also in Brussels (Interview with EU Official F).

While the EU is often criticised for its inability to speak with a single voice (Papadimitriou and Petrov 2012, p. 759), Kosovo’s domestic particularities have further deteriorated the situation. The intra-EU antagonism over Kosovo’s recognition demonstrated underlying institutional asymmetry where competences were scattered and the remit of responsibilities was often unclear. For instance, while the instrument for pre-accession assistance (IPA) has been managed by the EU Office/EUSR, the Visa Liberalization process is run by the Directorate General for Migration and Home Affairs (DG HOME) (Oproiu 2015, p. 158). Similarly, while communication between Belgrade and Pristina is facilitated by EEAS, political consultation to the Kosovan government is managed by the EU Office and prospective accession to the EU by DG NEAR. Moreover, the EU Office coordinates EU MS on the ground while EU MS themselves are also present in Kosovo with embassies and respective representations. As a matter of fact, the high degree of diffusion has puzzled national authorities and challenged the credibility of the EU as an effective state-builder and regional trouble-shooter.

Recently, the EU has attempted to gradually disentangle itself from overlapping reporting lines and institutional incoherence. The first step in this direction was that the EU Office/EUSR assumed the role of chief coordinator on the ground which was positively perceived by respective national authorities (Interview with Kosovan official). In addition, the head of EULEX and the EUSR hosted the Joint Rule of Law Coordination Board (JRCB)⁶ meeting with the Kosovan Minister of Justice being among the main invitees. The JRCB, together with joint working groups hosted by EULEX, signal a certain degree of unity in the eyes of domestic institutions; development which an EU official defined as a long overdue optimisation of the EU capabilities in Kosovo (Interview with EU Official B).

The crisis management of EULEX: emboldening internal sovereignty in spite of neutrality

In essence, internal sovereignty equals the ability of a central decision-making mechanism to: (a) exercise effective and legitimate control over domestic (political and economic) affairs, and (b) possess absolute jurisdiction over a certain territory. In the aftermath of war, Kosovans witnessed a plethora of international actors meddling with their own domestic affairs. The UNMIK is the most notable example of foreign presence mandated to implement an ambitious set of reforms and serve as “quasi-constitutional” for a decade or so. Although the mission attempted to create stability, promote security and foster domestic institutions, the overall footprint of the mission is deemed meagre due to certain domestic particularities. Constitutional provisions dating back to the Yugoslavian parliamentary monarchy, fragmented social intercourses entailing segregation (Serbia) and self-rule (Kosovo Albanians) and a lack of democratic tradition, i.e. peaceful communal co-existence and a multi-party electoral system, shaped a complex reality which went beyond the ability, means and reach of an international authority (Hehir 2006). Coupled with inability of UNMIK to read domestic dynamics and restore trust among ethnic communities, the far-fetched project of rectifying Kosovo’s domestic structures fell apart, plummeting the popularity of the mission and paving the way for a deeper EU engagement.

In the EU, earlier failures in the 1990s and the threat of a tailspin which could generate insecurity across the Balkan peninsula revealed the need to deploy a crisis management mission with state-building functions. Soon, however, the aspiration for state-building crumbled as a result of the unsuccessful UN-led initiative to bring forward a new resolution and deliver a viable roadmap for settling the dispute (Ahtisaari Plan). When the prospect of a new resolution faded, Romania, Slovakia, Spain, Cyprus and Greece who had presented the issuance of a new UNSC resolution as prerequisite for Kosovo’s recognition, refused to greenlight the deployment of EULEX with state-building functions. The absence of a new UN resolution along with centrifugal tendencies within the EU compelled EULEX to operate under the United Nations Security Council Resolution (UNSCR) 1244 in “status neutral” mode, with considerably altered policy objectives than the ones initially envisaged (Papadimitriou and Petrov 2012, p. 757). These very developments transformed EULEX from an executive civilian mission and main driving force behind Kosovo’s supervised independence to a rather technical mission with the sole responsibility for the enhancement of Kosovo’s rule of law.

In reality, EULEX’s composition was crafted in conformity with national predispositions confirming the sheer supremacy of the EU MS at all levels of policy-making. Decision-making councils (CoEU) and their permanent formation – the Political and Security Committee (PSC), operational bodies serving as CSDP missions’ headquarters (CPCC), and advisory bodies such as the Committee for Civilian Aspects of Crisis Management (CIVCOM) are all entirely filled with national officials (representatives, ambassadors and/or ministers). Furthermore, the reign of EU MS as pertains strategic and policy steering is undeniable. The most indicative example is the biannual horizontal downsizing of EULEX when, given the temporary mandate of the crisis management mission, EULEX’s functions are supposed to be gradually transferred either to local authorities or to other EU capabilities (EUSR or EU Office). While EU MS, EEAS and the European Commission advocate for a takeover by the EU Office, consolidating the EU’s presence in Kosovo, non-recognisers favour transfer to the EUSR, maintaining the crisis narrative which serves their own foreign policy objectives (Interview with EU Official A).

Although the effect of contested statehood on the diplomatic level is high as manifested by the power struggle within the EU, the situation on the ground provides little evidence of influence. According to a Kosovo-based EU official, the work of EULEX seems to be distanced from any political weight or consideration. The influence on a daily basis is somewhat insignificant and boils down to “things that don’t matter” like symbols, asterisks, customs stamps and licence plates (Interview with EU Official A). The minimal degree of politicisation enabled EULEX to conduct a fully fledged institution-building throughout time. For a decade, EULEX has been supporting the development of Kosovo’s internal state-like functions, offering assistance to national authorities in the field of judicial transparency (justice integration), situational awareness (compliance with integrated border management principles), police coordination (modernisation of law enforcement) and global communication.

In the justice realm, Kosovan judges have independently investigated, prosecuted and adjudicated cases of organised crime and corruption since 2018. Since 2017, and for the first time after 2008, the Kosovan court of Mitrovica has operated under the Kosovan flag (Interview with EU Official C). Court cases are jointly tried by Kosovo-Albanian and Kosovo-Serb judges with the discreet presence of EULEX in an advisory capacity on the appeals section and in the prosecution (Interview with EU Official C). Furthermore, there have been intensified efforts for the establishment of a record management system responsible for the issuing of passports to Kosovo Serbs. For years, Kosovo Serbs have been carrying redundant IDs due to their issuance prior to Kosovo’s independence. The database ensures recognition of documents predating independence, thus granting official Kosovan passports to Kosovo Serbs.

Similarly, the exchange of best practices and expertise between EULEX and Kosovo has strengthened situational awareness and facilitated border management. Kosovan authorities have started running border-crossing points effectively, in alignment with the Integrated Border Management (IBM) principles and objectives, and major cross-border vulnerabilities have been effectively mitigated (Interview with EU Official C). Moreover, despite the territorial contiguity and major security concerns, the EU has attempted to enhance its presence in the northern part of Kosovo. The EUSR’s frequent visits, establishment of information centres known as “EU Houses” and deployment of EULEX officials in North Mitrovica aim to consolidate an ad hoc presence (Interview with EU Official F). Going a step beyond this, EULEX and the Kosovan authorities have established a joint fund managed by the EUSR, Minister of Finance and Kosovo Serb municipalities. Customs fees from joint crossing points are funnelled to the improvement of public infrastructure, demonstrating good faith and allaying suspicion among communities.

In the law enforcement domain, the cross-sectoral collaboration between EULEX and Kosovan authorities enabled the national police to fight crime and tackle corruption more effectively. Within this framework, EULEX assumed responsibilities that often belong to the remit of states such as deployment of police units with executive powers (carrying weapons), ability to detain alleged offenders, management of civil disorder and presence in penitentiaries and prisons. Moreover, approximately 500 former Ministry of Interior staff (Kosovo Serb) received clearance by EULEX on behalf of Pristina in order to populate Kosovo’s public administration in the north of the country (Interview with EU Official C). After the new mandate in 2018, EULEX transformed into a second security responder, maintaining few residual competences. The mission continued supporting Kosovo’s law enforcement build-out by overseeing the implementation of the Belgrade–Pristina dialogue’s technical agreements and providing logistical and operational support to the Kosovo Specialist Chambers and Specialist Prosecutor’s Office – a de jure Kosovo court relocated to The Hague for the investigation of war crimes.

Moreover, EULEX ensured that Kosovo’s communication channels remain open to the outside world. EULEX’s Secure Information Exchange Network Application (SIENA) serves as Kosovo’s point of contact vis-à-vis other EU MS, Serbia, international organisations and EU institutions. For instance, any official correspondence or communication sought by the Spanish police with Kosovo is channelled through SIENA. Likewise, the European Union Agency for Law Enforcement Co-operation (EUROPOL) or the International Criminal Police Organization (INTERPOL) and even some EU MS who recognise Kosovo relay their communication through the same platform (Interview with EU Official C). Building further on that, EULEX actively coordinates communication between Serbia and Kosovo. Based on the 2009 protocol between EULEX and Belgrade, police co-operation-related matters are communicated by the Serbian Ministry of Interior to Kosovo through EULEX (Interview with EU Official A). Lastly, a milestone in Kosovo’s attempt to exert statehood is the biannual exchange of letters between the President of Kosovo and the High Representative of the EU in concomitance with the renewal of the mandate of EULEX.⁷ In these letters, the Kosovan government outlines the main priorities and policy objectives for the next two years. The exchange of political priorities allows EULEX to harmonise and align its work with Kosovo’s priorities, needs and level of ambition (Interview with EU Official B).

Clearly, EULEX played an important role in improving Kosovo’s national capacities, and streamlining its domestic institutions. Through crisis management, Kosovo managed to improve communication with the outside world, enhance judicial integrity, foster inter-agency coordination and embed accountability and transparency in its legal culture. What is more, since 2018, those functions are independently run by national authorities strengthening Kosovo’s assertiveness for sovereignty. For a highly fragmented society consisting of a Kosovo Albanian majority arguing for independence and a Serbian minority that refuses, to a large extent, to participate in domestic institutions (Krasniqi 2015), independent governance is certainly a key enabler for remedying inter-communal trust and restoring good faith.

However, seeing the bigger picture, the considerable progress in internal sovereignty does not even reach close to the potential gains of an external recognition which would pull the country out of the margins of the international system. In this regard, the ambition to follow up on the progress made in the past 20 years is roadblocked by lack of consensual politics within international organisations and by the current legal framework of UNSCR 1244 which limit the footprint of international actors present in Kosovo, including the EU. For the latter, although 22 EU MS have been vocally in favour of pinning Kosovo on the contemporary world map, the high degree of polarisation as regards contested statehood makes Kosovo’s remarkable internal makeover seem like an irrelevant parameter that perhaps, would not suffice to move things forward. Diplomatic dead ends, infused national narratives and the profound inability to coin a coherent policy towards contested statehood have raised doubts as to whether the EU would ever manage to go the extra mile, beyond institution building. On a similar note, expectations from UNMIK and Kosovo Force (KFOR) are equally low due to the fact that their operational mandate is linked to the legal framework of UNSCR 1244 which holds Kosovo on the bottom rung, stalling its journey towards fully fledged recognition. Similarly, the likelihood of a breakthrough through the Organization of Security and Co-operation in Europe (OSCE) is low, due to Serbia’s membership of the Permanent Council of OSCE leaving Kosovo with no option but to shift its recognition campaign towards other major international institutions and willing actors.

Conclusion

The strategic discourse of “wider Europe” expanded the regional blueprint of the EU while bringing non-conventional challenges and war-torn interlocutors into close proximity. The territorial and political shortcomings of the post-war era engendered new independence claims and competing statehood aspirations, which have emerged as a major foreign policy challenge for the EU since the early 1990s. Kosovo has been a prominent case of a new statehood claimant with a highly uncommon state of internal and external affairs. A lack of recognition, territorial contiguity and civil strife paint the scene of a fractured state that pools all its efforts to break the spell of marginalisation and international exclusion. On this journey, the role of the EU has been all but clear.

From the outset, intra-EU antagonism over the status of Kosovo has hindered the ability of the EU to speak with a single voice. National priorities and unresolved domestic issues have largely defined the scope and remit of EU policy instruments, thus navigating its engagement towards convenient investment rather than assertive, succinct statecraft. What is more, the EU’s engagement has been heavily limited by a restraining framework that has determined the logics, narratives and practises of it and all other international organisations present in Kosovo. For years, UNSCR 1244 has kept Kosovo in limbo, undermining its path towards fully fledged recognition, and setting a ceiling over what the EU (and others) can or cannot achieve in Kosovo. The stagnating setting of 1244 together with counter-recognition campaigns across the globe (Serbia) and the full commitment of Russia and China towards UNSCR 1244 reduce the prospect of a breakthrough as regards Kosovo’s international recognition.

In the realm of internal sovereignty, the situation looks better. Although political considerations have hijacked a potential state-building entrepreneurship, the carved-up institution-building reflects minimal influence by contested statehood. EULEX’s institution-building remains the least affected strand of that investment, providing tangible improvements in domestic structures and mechanisms.

This underlines the most profound controversy of the EU’s engagement in Kosovo. On the one hand, EULEX steered state-like functions aiming to help Kosovo achieve the coveted prerequisites for statehood. On the other hand, EU’s unassertiveness together with the limiting framework of UNSCR 1244 have put Kosovo’s path towards recognition on indefinite hold. And although Kosovo’s progress in domestic sovereignty and optimisation of its external network (currently participating in 60 multilateral organisations) look impressive, the likelihood of a breakthrough remains low as long as the EU’s expectations, level of ambition and strategic priorities are not totally aligned. Thereby the process of “Europeanness” for Europe's youngest country is being stalled until further notice (Musliu 2021).

Acknowledgments

I am most grateful to Professor Marieke de Goede for her constant support, excellent supervision and feedback during the whole process. Special thanks go to EULEX representatives who offered precious insights and helped me get a good grasp on the situation in Kosovo. Lastly, my appreciation is extended to all the interviewees and to my partner Alaa for our extensive brainstorming and thought-provoking discussions throughout.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 German Federal Ministry for Economic Cooperation and Development, 2022. Kosovo: on the road to becoming a fully-functioning state. Available from: https://www.bmz.de/en/countries/kosovo [Accessed 4 October 2022]. 117 countries seem to have recognised Kosovo up until today. See more on: https://www.bmz.de/en/countries/kosovo. However, it is certainly hard to indicate the exact number given that (a) Kosovo’s path to international recognition is still an ongoing process, (b) it is heavily countered by anti-recognition campaigns.

2 Bouris and Kyris (2017) employ the threshold of two-thirds of United Nations members as an indicator of conferred external recognition.

3 See reference 1.

4 The Brussels Agreement was the first step towards normalisation and restoration of trust between Serbia and Kosovo. However, it is not considered as international agreement since it was not ratified by the Serbian parliament nor by the EU (2013). See more about the agreement on: https://www.srbija.gov.rs/specijal/en/120394.

5 The asterisk symbol accompanied with a footnote indicates that the status of Kosovo has not been unanimously agreed upon and recognised by EU MS. In particular, the footnote text mentions that “this designation is without prejudice to positions on status and is in line with UN Security Council resolution 1244 and the International Court of Justice Opinion on the Kosovo declaration of independence”.

6 The last JRCB took place in 2018, as the mandate of EULEX was then altered. However, it was considered as a very important step for (a) the coordination of European capabilities in Kosovo, and (b) forging a common understanding on challenges faced by both Kosovo and EULEX. See more on: https://www.eulex-kosovo.eu/?page=2,56.

7 The exchange of letters between President Vjosa Osmani (2021) and the EU High Representative for Foreign Affairs and Security Policy, Josep Borrel Fontelles, takes places biannually. Through these letters, Kosovo’s priorities are duly delivered to the EU. In turn, the EU adjusts policy objectives and action plans to better address Kosovo’s emerging needs. See more on: https://president-ksgov.net/en/news/president-osmani-extends-the-eu-rule-of-law-mission-in-kosovo-technical-mandate.