The EU has led what is known as the normalization dialogue between Kosovo and Serbia for over a decade. A clutch of practical, technical agreements have resulted, although only partially implemented. But the process may now be heading for its collapse in any event.
The dialogue was called for the UN General Assembly, when it welcomed the decision of the International Court of Justice which had found that Kosovo’s declaration of independence had been in accordance with international law. On this basis, the General Assembly called on the EU to facilitate a process to promote cooperation between Serbia and Kosovo.
In answer to this call, the EU commenced the Brussels dialogue with the aim of full and comprehensive normalization expressed in a legally binding way. Reaching this aim would be a key criterion for future EU membership of both states. Indeed, it is not easily possible to see how the EU could accept a member state, Serbia, that retains the aim of incorporating its neighbour, Kosovo, within its territory.
Kosovo’s independence came at a price. It accepted the very involving requirements negotiated under the auspices of UN envoy Martii Ahtisaari, the former President of Finland. This meant offering far more extensive rights to minority communities in Kosovo than any other state in Europe has accepted and granting specially enhanced powers of self-government to municipalities with an ethnic Serb majority.
Serbia banked these concessions, but failed to sign the Ahtisaari agreement, which was nevertheless implemented fully by Kosovo.
In fact, Serbia has used this technique from beginning to end. It negotiated hard at the Rambouillet conference that aimed to prevent the outbreak of wider war in Kosovo. In the end, Kosovo accepted and Serbia refused. The outcome was war between NATO and Serbia.
In the Ahtisaari process, Serbia negotiated the wide-ranging concessions that were in the end provided, without signing the accord. Still, it profited from the provisions it had negotiated, without having to offer anything in return, in particular acceptance of Kosovo’s statehood. The outcome was persistent instability in the North of Kosovo, where Serbia has retained parallel structures of government remotely piloted from Belgrade.
This absence of consent has also inhibited Kosovo’s campaign to receive universal recognition and membership in key international organizations, like the UN. Again, the normalization dialogue was meant, finally, to address this issue. Comprehensive normalization in a legally binding way is code for definite acknowledgement of Kosovo as a state.
US President Joe Biden therefore correctly reminded the sides over a year ago that the normalization process has to be ‘recognition-centred.’ So has the European parliament. But Serbia has not budged, insisting that it will never give up its claim to Kosovo.
Last year, Germany and France offered a new initiative, based on the 1972 Basic Treaty between East and West Germany. That agreement noted that the sides had different views on specific aspects of their respective legal identity, but they agreed to treat one another nevertheless as states. Universal recognition and UN membership followed for both Germanies.
Last September, the EU offered more or less that same text to the sides. Kosovo was initially reluctant. After all, the reference preserving the view of each side on status meant that there was no recognition on offer. Still, according to the agreement, at least de facto Serbia and Kosovo would treat one another according to international law and the UN Charter. They would exchange diplomatic missions, develop good neighbourly relations and cooperate in a range of other fields.
The draft was however accompanied by an annex which would have forced Kosovo to deliver one critical element first, before other provisions would become operational. This would be what was previously called the Association of Serb-majority Municipalities (ASM), now covered by Article 7 of the new, Brussels Agreement of 27 February and 18 March of this year.
In 2013, Kosovo had accepted the proposed ASM in what became known as the First Agreement emerging from the normalization dialogue. Now, the EU facilitation insisted, Kosovo would finally have to implement this commitment as part of the new, German-French initiative.
Subsequent governments in Kosovo were hesitant. They feared that establishment of the ASM would reinforce the parallel structures through which Belgrade was remotely piloting governance in the North of Kosovo, mainly inhabited by ethnic Serbs. Yet further autonomy, focused not on individual municipalities, but manifested in a single legal entity in the North in the shape of an ASM, might eventually lead to separation of the territory from Kosovo.
To make progress possible nevertheless, Article 7 of the Brussels Agreement carefully avoids the designation of ‘ASM.’ Instead, it refers to a mechanism ‘to ensure an appropriate level of self-management for the Serbian community in Kosovo and ability for service provision in specific areas.’ This is balanced by a requirement for Kosovo and Serbia to agree the modalities for possible financial support by Serbia for those communities.
Such caution in framing the issue afresh was well advised. After all, the Prime Minister of Kosovo, Albin Kurti, had came to power on the clear election promise that he would never ever agree an ASM.
In addition to this linguistic change, Kosovo had earlier received iron-clad assurances from the EU that the proposed ASM would not constitute a third layer of government between the municipalities and the Kosovo institutions and that it would not be endowed with executive powers. These assurances had been put into writing by the then Vice President and High Representative of the European Commission for Foreign and Security Policy, Federica Mogherini. Now, the Facilitator confirmed to Albin Kurti that, in view of the experience of Bosnia and Herzegovina under the Dayton agreement, any solution that would go beyond these assurances would be deemed unacceptable.
Moreover, the Constitutional Court of Kosovo had ruled out a design that would allow the Association to implement actions of its own, again, acting as an executive agency. Instead, it would need to be a body to coordinate the actions taken by the individual, affected municipalities. It was also made clear that there could not be discrimination against individuals or groups in Kosovo.
In advance of the Brussels meeting of late February of this year, where the text of the new agreement was fixed, the EU Facilitator again promised and pledged that Article 7 would be implemented in accordance with these earlier assurances and the requirements of the Kosovo Constitutional Court. He made it clear once more that the Article 7 mechanism would not constitute a further layer of governance and would not have executive powers. Instead, it would merely exercise a coordinating function in relation to service delivery. These formal commitments were echoed by the US government, by then heavily engaged in seeking to secure acceptance of the Agreement based on the German-French initiative.
On the basis of these assurances, Kosovo accepted the German-French text and offered to sign there and then, at the Brussels meeting of February. However, in deference to Serbia’s reluctance, the EU Facilitator discouraged signature at that point.
The EU arranged a second high level meeting for the President of Serbia, Aleksandar Vucic, and the Prime Minister of Kosovo, held at Ohrid, North Macedonia, the following month, where the implementation modalities were to be fixed and the Agreement would be finalized. A formal signing ceremony in Paris was envisaged to celebrate the success of the German-French initiative.
Then, suddenly, the entire process was derailed.
On the very eve of the negotiations, late at night before departure of Ohrid, the EU presented Kosovo with a revised draft Implementation Annex for the proposed agreement that entirely overthrew the previous version that had been discussed with the sides for some four months. The Annex had suddenly grown from one condensed page into three, and from 8 concise articles into 18. It was a surprise move, presented after close of business the day before departure, shifting the goalposts entirely in favour of Serbia.
Apparently, Serbia had signalled that it might not, after all, sign unless further requirements were met. To meet this threat, the plan seemed to be to tempt Belgrade at the last minute into signing by offering far-reaching concessions. These sacrifices were suddenly imposed upon Kosovo without any consultation.
And these were significant changes. They included, for instance, turning the discussions between the Serb Orthodox Church in Kosovo and Kosovo into negotiations between Kosovo and Serbia, removing the obligation of Serbia not to object to Kosovo’s UN membership bid, and handing the functions of the illegal parallel structures in the North wholesale on to the proposed Article 7 mechanism or ASM,. This would have turned that mechanism into a major executive body after all.
Nevertheless, on his arrival at Ohrid, the Kosovo Prime Minister made a formal statement, declaring himself ready to negotiate the annex in good faith and sign the agreement. However, as soon as the negotiations commenced, and despite the clutch of further concessions presented to Serbia at the expense of Kosovo, President Vucic simply declared that he would not sign the agreement, whatever its content.
Strangely, this was not at all resisted by the EU. Apparently this contingency had been expected and planned for. Instead of pressing Serbia to change its attitude, in a rather incredible move, the Kosovo Prime Minister was presented with a blank signature page and pressed to sign it alone. Sensibly, he refused.
In the chaos that ensued, and the attempt to rescue the process, it was in the end agreed that each party would communicate to the EU its acceptance, without formal signature of the agreement. However, as soon as this arrangement had been made, President Vucic emerged from the negotiating venue, claiming that he had accepted nothing in relation to Kosovo.
While the EU formally resisted that view, the reality is different. Serbia has consistently asserted that it is not bound by the agreement in relation to Kosovo and that it will only implement the parts of the text it chooses. Evidently, it has only chosen the elements that impose obligations on the other side, on Kosovo, in particular immediate implementation of the Article 7 mechanism (formerly the ASM).
Kosovo has been robbed of the benefit of an overall, binding agreement that places its relations with Serbia on the footing of international law—the key element that persuaded it to accept the agreement. Without formal signature, its intended effect of attracting additional third states to recognize Kosovo and achieving membership in further international organizations is nullified.
Rather than insisting that Serbia has to declare whether it is in or out of the agreement, the EU and the US are now demanding that Kosovo has to perform on the Article 7 mechanism, formerly called the ASM. Immense diplomatic pressure has been brought to bear towards this end.
At the same time, the EU Facilitator has gone back on the commitments he and the EU made before Kosovo agreed to the text, concerning the criteria for the Article 7 mechanism, formerly the ASM. Without any apparent sense of shame, he has imperiously written to Kosovo, asserting that he may or may not comply with his own promises, or even those made formally and in writing by his boss, the EU High Representative. From Kosovo’s perspective, this could and should be considered a breach of faith.
Far from being contrite, the Facilitator has refused to engage with Kosovo’s justified complaints. His letters in answer to Kosovo’s submissions remain haughty and technical. They do not acknowledge the immense shift in the balance of interests on the part of Kosovo the EU has allowed to occur through its mishandling of the German-French initiative.
Instead, he is now assigning for himself the role as final arbiter in developing its statute. While the parties can register their objections, it appears that he will determine the final text where they fail to reach agreement. Clearly, this is not an acceptable approach for Kosovo where governance of its own, sovereign territory is concerned.
Indeed, the proposal is that a separate track should be established in the normalization dialogue, exclusively covering the implementation of Article 7 at expert level. In fact, this dedicated track only appears to address one aspect of Article 7 which, tellingly, is again described as ‘ASM,’ rather than using the carefully crafted wording adopted in the new agreement.
The other aspect covered in Article 7 concerning agreed and transparent modalities for financing of local services with contributions from Serbia channelled through the Kosovo institutions is left out. In fact, the original intention when Kosovo accepted the agreement of 2013 was to find a means to addressing the persistent issue of the illegal maintenance of parallel structures of government by Serbia in Northern Kosovo.
According to that design of 2013, illegal parallel structures would be removed altogether. Legal exercises of functions by the relevant municipalities within their competences and enhanced competences according to the Ahtissari document and the Kosovo Constitution would be facilitated. These could continue to be funded in part from Serbia, provided this would be done transparently and through the Kosovo institutions. These functions would still be exercised by the relevant municipalities individually, but they would be able to coordinate their policies and actions concerning service delivery through what was then called the ASM.
Hence, granting the ASM as a mechanism of coordination for municipalities on the one hand and ending parallel structures of government on the other were closely connected in the initial agreement of 2013. The same connection is made in Article 7, which addresses both aspects. However, this connection is entirely disregarded in the present process.
Kosovo has also been frustrated by the insistence of the EU on proceeding with the ‘ASM’ as if the present Brussels Basic Agreement was never negotiated. A draft for the statute of what is still been designated as the ASM has now been submitted to the dialogue by a so-called Committee of Management consisting of four Serbian mayors. This was foreseen in a non-binding ‘plan’ proposed in 2015, which has since fallen into desuetude. Nevertheless, the Facilitation has insisted on applying it now, some eight years after that plan was proposed, and after the conclusion of the fresh Brussels Agreement, as if this plan was binding law.
By now, one of the members of this Committee is a serving member of the parliament of Serbia. She has only recently sworn to defend the interests of the people of Serbia, while supposedly representing the citizens of Kosovo in that Committee.
The composition of the Committee and the association of its members with Serbia means that, in essence, the draft statute was generated by the Serb side. In a second go, Serbia is also granted the right to negotiate on that very draft statute of its own making. The Facilitator then claims the right to impose whatever outcome of that skewed process he deems balanced.
In fact, Kosovo had been assured that any draft emanating from the defunct Committee of Management would be ruled out unless it fulfils the requirements for the implementation of Article 7 previously agreed. The discussion would then focus on an alternative, credible draft that might be submitted by Kosovo.
The draft submitted by the Committee of Management clearly entirely fails to meet these requirements. It could never meet the agreed criteria or pass the proposed review by the Constitutional Court of Kosovo. However, the Committee of Management draft has not been challenged by the Facilitator. This means that it would be the basis, or one of the bases, for the negotiations.
Having discarded the agreed criteria circumscribing the structure, functions and powers of the Article 7 mechanism, or declared them dispensable according to the whim of the Facilitator, there is unsurprisingly little appetite on the side of Kosovo to engage on this issue under these conditions. This even more so, as it would mean signing onto a process whereby the Facilitator claims the authority to develop a final version himself, for instance by splitting the difference between the unacceptable draft of the Committee of Management and one that might be submitted by Kosovo, down the middle, as it were.
Hence the present impasse relating to Article 7. The Facilitation has allowed the German-French Initiative to be turned into a vehicle that is only focused on forcing Kosovo into accepting an ASM. Indeed, the entire normalization process has become focused on this one single issue. But with Serbia’s failure to sign the agreement, there are no benefits that Kosovo would gain from this process.
This impression has been strengthened by the refusal of the Facilitator to issue a plan concerning the implementation of the other elements of the Basic Agreement. The Facilitator has thus far refused to present a firm arrangement for the balanced sequencing of implementation steps attaching to the Brussels Agreement, where action of one side is matched by countervailing implementation by the other. This was foreseen in the Implementation Annex that was on the table for some four months, before it was suddenly and radically revised against the interests of Kosovo.
Now, the Facilitator asserts, it is not possible to ensure balanced implementation. This, he argues, would not be accepted by Serbia, which insists that it can pick and choose which elements of the Basic Agreement and Annex are worthy of implementation.
Again, the assumption is that the process consists only of what is acceptable for Serbia. The positions and interests of Kosovo, and the principles of conducting balanced and fair negotiations, are simply disregarded.
Overall, the approach seems to have been one where an outcome is negotiated with both sides. Then, additional concessions are made to Serbia unilaterally to induce it to sign. Kosovo, it seems to be assumed, will be pressed into agreement, even if these additional concessions are not acceptable to it. Even then, Serbia is allowed to disown the agreement in formal terms. Still, it is only Kosovo that is required to comply and implement its part of the obligations.
The Facilitator argues that this imbalance has to be seen in the context of, and accepted as a consequence of, the geopolitical shift occasioned by Russia’s invasion of Ukraine. The EU is after all attempting to lure Serbia into the Western camp in a far greater game than the discussions on Kosovo.
Of course, Kosovo is fully supportive of the aims of the EU. However, in this process, its own future is at stake. The government of Kosovo must act in these negotiations as the representative of the people of Kosovo, safeguarding their essential interests.
It is hardly surprising that Kosovo is now ‘calling the game,’ as negotiations theory would have it, pointing to the inequalities and defects in the Brussels negotiations. Either Serbia is a party to the Brussels Agreement of February and March, or it is not. If it is, this has to be formally acknowledged, not only by the EU, but also by Serbia itself. It cannot forever enjoy a free ride in the process.
Belgrade must comply with all of the obligations contained in the agreement. It does not have the luxury to determine which obligation it may or may not be willing to implement, while demanding that Kosovo must deliver its most difficult and painful commitments first.
If this is not possible for Serbia, then the EU must re-think its overall approach to the normalization process. Article 6 of the Brussels agreement promises a renewed impetus towards full, comprehensive and legally binding normalization. If Belgrade cannot even bring itself to signing this initial agreement, there seems to be little prospect for further, recognition-centred discussions.
There also seems to be a fair way to go to restore trust and confidence in the person of the EU Facilitator. The actions of the Facilitation have been unbalanced, erratic and, at times, lacking in professional execution. Instead of exhibiting an imperial attitude, there is a need to listen to and take account of the interests and concerns of both sides. Whatever other geopolitical interests the EU wishes to pursue, this also means listening to Kosovo.
At the beginning of the year, Kosovo had in fact committed itself to a new, constructive course of action in support of the Brussels agreement. This has been acknowledged by other international partners. However, this spirit has been sorely tested and may perhaps have been replaced by an atmosphere of retrenchment and distrust in view of the experience of Ohrid and the engagement with the Facilitation and some others since then.
Moreover, if there is nothing to gain for Kosovo in the dialogue other than avoiding punishment by its friends and allies, Kosovo may not be much minded to move on this front. Going by past practice, threatening ‘measures’ and sanctions will not have much effect on this present government in this respect. A cooperative solution must be found. This may require a re-set in the negotiations.
In addition to the complication brought about by the present interest in events in the North of Kosovo, finding a way out of the present deadlock in the negotiations will not be easy. The EU has boxed itself into a very tight corner with its unwavering demands concerning an ‘ASM.’ Yet, a creative, new approach may have to be found if the process is to continue. It will have to be a more balanced one. Perhaps a creative pause is required to facilitate calm thinking and quiet discussion over the hot summer months.
Marc Weller is Professor of International Law and International Constitutional Studies in the University of Cambridge. He has advised on dozens of international peace negotiations and constitutional processes, is the co-editor of International Law and Peace-settlements (Cambridge University Press, 2021), and has served as occasional advisor to the governments of Kosovo since 1992. The views expressed are his own alone and must not be attributed to any government or institution.