The challenge of moving from normalised dialogue to normalised relations

Five years since the beginning of the Kosovo-Serbia dialogue and three years since the signing of the ‘First Agreement of Principles Governing the Normalization of Relations’, the EU-facilitated dialogue’s record is mixed and contested. The April 2013 document establishing the parameters for including northern Kosovo within Prishtina’s legal framework, while increasing autonomy for the predominantly Serb municipalities (especially those in the north) and providing the opportunity for closer cooperation through the Association/Community of Serb majority municipalities, as well as the other ensuing agreements, have proven not only politically controversial but difficult to implement. Although some progress has been achieved, primarily when it comes to the integration of police and the organisation of elections in the northern part of the country, both countries have failed to implement the signed agreements completely. According to BIG DEAL (Civic Oversight of the Kosovo-Serbia Agreement Implementation), by the end of 2015 only four of the 17 agreements have been implemented completely.

From a state-building perspective, the main achievement of this process has been the fact that it allowed Prishtina for the first time to establish some sort of nominal control in north Kosovo, mainly through the establishment of border control, police integration and election of new mayors and local councils according to Kosovo law. Yet, the integration of north Kosovo is happening at a snail’s pace and Belgrade shows no sign of loosening the grip on local Serbs in the north and allowing that part and its population a faster and more meaningful integration within the Kosovan system. Prishtina’s cautious approach to north Kosovo has paid some dividends but its institutions often are inept and ineffective, especially when it comes to concrete policies that engage local people, thus favouring the status-quo.

In a wider context, the whole process of dialogue had a positive effect in establishing some sort of cooperation between Kosovo and Serbia. Most importantly, despite initial scepticism, opposition, seatbacks and challenges regarding its implementation in practice, the dialogue has been going on for more than five years. By now, the dialogue has been normalised and is considered indispensable in both countries. Nonetheless, five years of negotiations have produced limited results and comprehensive normalisation remains an elusive prospect.

Based on the record of the dialogue so far, there are three key challenges that need addressing before any comprehensive normalisation between the two countries can take place. First and foremost, the EU’s ‘creative ambiguity’ and its ‘status neutral’ approach, which was important in breaking the stalemate in 2011, is fast reaching its ‘use-by date.’ It has become almost impossible to continue the dialogue and reach new agreements without dealing with the key issue of reciprocal ‘acceptance without recognition.’ Practice has shown that although the 2013 agreement presupposes that Kosovo’s legal system is supreme in the territory of Kosovo, Serbia’s insistence on the ‘status neutral’ character of the agreement has often become an insurmountable barrier to the implementation of its provisions and those of other agreements. A case in point is the long-standing disagreement between the Government in Pristina and the four northern municipalities over the content of the new municipality statutes and their budgets. Another is the ongoing mini-trade war between the two countries sparked by Serbia’s refusal to recognise Kosovo ARD certificates necessary for the transport of hazardous materials on the grounds that Kosovo is not a UN member.

So far, Serbia has demonstrated that in its relations with Kosovo it will stick to the agreed conclusions while refusing to respect/recognise other legal provisions in Kosovo that were not part of the Brussels talks. Thus, for Serbia, Kosovo’s legality is confined exclusively within the Brussels agreements. Moreover, it continues to maintain political structures (appointed mayors) and social, educational and healthcare institutions in various parts of Kosovo, most notably in the north. The signing of a legally binding agreement, albeit without a de jure recognition (at least at this stage) has become imperative to cement the progress achieved in the dialogue so far but also to accelerate a more comprehensive process of integration of local Serbs in the Kosovan system and society and normalisation of relations between the two countries.    

Second, the current process of dialogue between Prishtina and Belgrade should be gradually replaced by a process of internal dialogue in Kosovo between the Albanian and Serb communities, but also between the ruling parties and opposition in the Kosovan parliament and institutions. One of the key shortcomings of the Brussels dialogue is its democratic deficit. Irrespective of the fact that the whole process focuses on the rights of Serbs in Kosovo, they have been completely side-lined in the process.   This can undermine the process of political, social and economic integration in Kosovo in the long run as well as the very process of implementation of the signed agreements.

Equally, the current format of the Brussels dialogue has undermined democratisation in Kosovo. The need to achieve short term gains in the form of agreements in the negotiations pushed the EU to rely exclusively on strong political leadership both in Serbia and Kosovo, ignoring wider institutional and societal participation. This has backfired in at least two main ways. On the one hand, it has alienated a part of the Kosovo Albanian population and opposition parties that, in turn, sought to mobilise people against the Brussels agreements, in particular the one on Association/Community. As a result, minority rights issues became a toxic political issue for the first time in Kosovo’s post war democratic and parliamentary life.

On the other hand, this has enabled the Serbian Government to establish direct control over the representation of Serbs in Kosovo, thus practically destroying political pluralism among Kosovo Serbs. Serbia was heavily involved in the Kosovo elections by creating and supporting a single Serb list – ‘Srpska Lista’. The Serbian ruling party (SNS) is fast wiping out any other party of platform among Serbs in Kosovo. This goes against EU’s investment since 2005 to create independent Serb parties in Kosovo. Ever since its establishment, the Serb List has been directly controlled by the Serbian Government and SNS making it a de facto SNS branch in Kosovo. Through the control of the Serb List and remaining Serbian institutions in Kosovo, the Serbian government of Aleksandar Vučić and SNS have tighten the control on local Serbs in Kosovo, leaving them open to political blackmail and abuse. As a result, the overwhelming mood among Serbs in Kosovo, especially the ones in the north, is that of powerlessness, fear and uncertainty about the future relations with Kosovo institutions.

Internal dialogue between Albanian and Serbs in Kosovo not only between political parties and leaders, but also civil society, intellectuals and young people is essential for any genuine integration to happen in the future. Difficult as it may be at this stage, such dialogue should tackle issues of war, post war developments and, most importantly, the need to come up with a common vision about the future of Kosovo and the region in general. It is truly tragic that Kosovo’s education system, sport and culture remain totally segregated without any genuine and significant efforts to build bridges of cooperation. Should this situation continue for the years and decades to come, it will certainly render any political agreements irrelevant and ineffective in the long run.  

The current practice of abstract and legally ambiguous agreements should be abandoned by all parties in order to avoid political and legal impasse conflict in the future. In particular, it is quintessential to avoid legal ambiguity when it comes to the much contested statute of the Association/Community of Serb majority municipalities. This is a key element of the negotiations and persistence of legal ambiguity and ensuing diverging interpretations risk becoming a source of endless (re)negotiation and even conflict in the future.

Experience with previous legally ambiguous agreements, such as the one on Integrated Border/Boundary Management, is very negative and discouraging.  Although it was originally signed in 2012, it has been (re)negotiated several times and still is a source of disagreements prompting certain unilateral measures by both parties that ultimately hinder free movement of people and goods on both sides of the border. The Association/Community is too big and important to be left ambiguous. Its structure, powers and rules of procedure should be as a clear as possible to avoid future disagreements and political/legal disputes.

Judging by the current political climate in Kosovo, characterised by political impasses and conflict between the government and opposition, as well the Constitutional Court ruling on the document that established principles of the Association/Community, the process of establishing it will be protracted. Certainly, there will be many legal issues and practical challenges rising along the path, thus making the whole process a daunting endeavour. Serbia’s aim of plugging its existing institutions in Kosovo together with the services provided and jobs (a large number of which are totally unproductive) into the newly established structure of the Association/Community will prove to be a huge hurdle in the process. Not to speak about Serbia’s healthcare, welfare and education system in Kosovo, which has been left almost intact since 1999.

In a nutshell, despite its biggest achievement – normalising dialogue, the current format of the Brussels dialogue has reached its limits and will hardly achieve any substantial results without a legally binding agreement between the two countries. Nevertheless, the momentum has been shifting due to the refugee crisis in the Middle East and Europe, as well as due to the developments in Serbia and Kosovo. With EU enlargement and a Kosovo issue off Brussels’ agenda, neither Kosovo nor Serbia seem to have much interest in implementing the already signed agreements.  Therefore, it is almost certain that the current stalemate will continue for at least couple of years before a major step in the normalisation of relations through some sort of ‘acceptance without recognition’ legally binding agreement would be taken.