What went wrong in the Brussels dialogue

This expert study analyzes the reasons for the present deadlock in the Brussels negotiations on normalization between the Republic of Kosovo and the Republic of Serbia. It demonstrates that the dialogue is being conducted by the present EU Facilitator in a highly unbalanced way, to the point of risking its continuation. Having accommodated Serbia’s refusal to sign the Brussels Basic Agreement of 27 February, the process appears to focus only on issues the Republic of Serbia is willing to discuss, and which require sacrifices on the part of the Republic of Kosovo alone. The entire process, including the German-French Initiative of a Basic Agreement, appears to have been transformed into a machinery to press Kosovo into compliance with the demands of Serbia, while ignoring entirely the intended balance of obligations in the Brussels Basic Agreement. This fact is compounded by a loss of faith in the EU Facilitation and its erratic, unbalanced and at times unprofessional approach throughout.

This analysis is offered by Professor Dr jur, Dr phil Marc Weller, MA, MALD, PhD, CIArb. The author 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 author, editor or co-editor of some 25 books in this area, including 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, starting with President Ibrahim Rugova. The views expressed are his own alone and must not be attributed to any government or institution.

This document addresses these points as follows:

I. Aim of the Brussels Dialogue

II. Shaping the Dialogue Only According to Serbia’s Interests

III. Doubtful Legal Quality of the Agreements now Forced on Kosovo

IV. The Franco-German Initiative of 2022

V. Serbia’s Failure to Sign the Basic Agreement and Annex

VI. Acceptance of Serbia’s Claim Not to be Bound in Actual Fact

VII. Upsetting the Balance of Interest Underpinning the Supposed Agreement

VIII. Material Breach

IX. An Unfair and Unbalanced Process: The Example of Ohrid

X. Implementing Only Article 7, and Even Then, Only Parts of It

XI. The Aim of the Agreement of 2013

XII. Unbalanced Methodology

XIII. The Issue of the Management Committee and its Draft

XIV. Partial Vision of Article 7: The Issue of Parallel Structures

XV. The Facilitator as the Zar

XVI. Repudiation by the Facilitator of his own Commitments

XVII. Overall Attitude

XVIII. A Way Forward?

12 JUNE 2023

SUMMARY:

• The Facilitation has not acted in a way that is neutral in its approach to the sides. Its overall aim is to entice Serbia into Europe, especially in view of the crisis triggered by the aggression of the Russian Federation against Ukraine. Hence, the focus is on attracting acceptance by the Republic of Serbia. This means ignoring the interests and inputs of the Republic of Kosovo which, it is thought, can be pressed into accepting whatever outcome emerges as being acceptable for Serbia.
• For instance, the Annex to the Basic Agreement was fundamentally changed to the detriment of Kosovo just hours before the Ohrid negotiations of March, in an evident attempt to accommodate Serbia. Despite these major concessions, Serbia still frustrated the process, refusing to sign any outcome, whatever its contents. Nevertheless, even then, the EU decided to proceed as if the agreement had been signed by the sides.
• This means that Kosovo lost the key benefit that it expected from the Brussels Basic agreement: a clear acknowledgement by Serbia of mutual relations conducted on the basis of United Nations principles, including non-use of force, sovereign equality and territorial integrity, in legally binding form. This change in the balance of obligations expected from the Basic Agreement has not been addressed in any way.
• While maintaining that the Basic Agreement is in fact binding on the sides after all, the Facilitation has effectively acted in accordance with Belgrade’s claim to be able to pick and choose which of the obligations contained in the Agreement, if any, it may or may not implement. This is the antithesis of a treaty relationship which requires equal implementation of all provisions on the basis of a balance of interests between the sides.
• The process now exclusively focuses on addressing the issue of implementing Article 7 of the Basic Agreement concerning cooperation of ethnic Serb majority municipalities in self-management in relation to service delivery. This is the one issue of interest to Serbia, and the one issue where Kosovo is now expected to give all, unilaterally and in advance.
• In fact, the proposed format even for this discussion only addresses one aspect of Article 7 and ignores the other of interest to Kosovo, concerning support for the parallel structures of governance by Serbia. It also ignores the framing of the issue in Article 7.
• The Facilitator has gone back on his own firm assurances, formally and repeatedly made, and the assurances given earlier by the EU, on the criteria for the mechanism to implement Article 7. In another context this would be considered a breach of faith.
• The Facilitator claims absolute powers to shape the result of these discussions, whether Kosovo agrees in the end or not. This cannot be accepted on an issue falling withing Kosovo’s sovereign jurisdiction.
• There is no firm implementation plan balancing the concessions expected on the part of Kosovo with counterveiling concessions on the part of its negotiating partner. Kosovo alone is meant to deliver. Initial violations of the Basic Agreement by Serbia have been left unaddressed by the Facilitator.
• There is no prospect of advancing recognition-centred, full, final and comprehensive normalization in a legally binding way as is required by Article 6 of the Basic Agreement.

I. Aim of the Brussels Dialogue

Contrary to popular myth, the Republic of Kosovo did not gain its independence unilaterally. It participated fully and constructively in the final status process conducted by former President of Finland, Marrti Ahtisaari, on behalf of the United Nations. The Republic of Serbia refused to sign the resulting comprehensive proposal for a settlement. Kosovo nevertheless implemented all the obligations contained in the instrument that had been negotiated, even without obtaining recognition of its status from Serbia. These included the most far-reaching provisions for the protection and promotion of the rights of its ethnic communities in Europe and in fact anywhere in the world.

There is no room for negotiating the conditions of Kosovo’s independence once more. The Republic of Kosovo has made all the concessions deemed necessary by the organized international community. The fact that the Republic of Serbia refused to acknowledge this outcome at the time, then as now refusing to sign the resulting agreement, does not open the door for yet further concessions to be negotiated. That is not the aim and focus of the present negotiations on normalization of relations.

The Republic of Kosovo is secure in its status as a sovereign state and cannot be expected to negotiate additional conditionalities for status. The assumption that Kosovo has to buy recognition of its status by the Republic of Serbia with further concessions, including undesirable autonomy arrangements for Northern Kosovo, in another round of negotiations is therefore misplaced. The focus of normalization is the development of cooperation and good-neighbourly relations between the sides, not the question of the existence of one of the sides.

The Republic of Kosovo cannot be expected to offer more and more, only to find each time that the Republic of Serbia is not, after all, willing to offer acknowledgement of its status and genuine normalization, while still banking the concessions that were made in the expectation of real progress. Kosovo has already granted all possible provisions and mechanisms that might be assigned to its ethnic minority communities. This includes broad competences, and even enhanced competences, for its ethnic Serb citizens, especially in municipalities in which they constitute the majority. The Republic of Serbia has obtained these benefits through the Ahtisaari process, without accepting the intended corresponding obligations of its own.

The Republic of Serbia is now using the same ploy yet again. It negotiated the Basic Agreement of 27 February and obtained significant concessions in the process. However, it has not signed the agreement and claims not to be bound by it in relation to Kosovo. Hence, it is only Kosovo that is required to comply with the obligations contained in the agreement and its government has come under tremendous pressure to deliver these. The other part of the agreement, taking at least a significant step towards genuine normalization on the part of Serbia, is being ignored.

Full and comprehensive normalization is indeed the formal mandate for the Brussels process. The Brussels dialogue commenced upon the invitation of the United Nations General Assembly, expressed in Resolution 64/298 (2910). That resolution acknowledged the finding of the International Court of Justice which had determined that the declaration of independence of Kosovo was in accordance with international law. It welcomed the readiness of the European Union to facilitate a process of dialogue between the parties that would promote cooperation, achieve progress on the path to the European Union and improve the lives of the people.

The EU has implemented this request in the context of its discussion with the Republic of Kosovo and the Republic of Serbia concerning EU accession. The EU has determined that accession requires full, final and comprehensive normalization between the sides in a legally binding form. It is not possible for the EU to contemplate membership of a state that claims the territory of another state in its constitution and policy whilst also committed to absorbing the territory of its neighbour. Failure to achieve such full normalization would negate the aim established by the UN General Assembly of achieving ‘peace, security and stability in the region.’ Hence, the dialogue needs to achieve legal acknowledgement of the existence and status of Kosovo as an end state.

This process commenced with technical discussions in 2011 and resulted the following year in High Level Dialogue, initially facilitated by HR/VP the Rt Hon Baroness Catherine Ashton. Starting with the First Agreement of Principles Governing the Normalization of Relations (the Brussels Agreement) of 2013, a whole series of technical agreements have been concluded by the sides. However, the overall aim of achieving comprehensive normalization was neglected throughout, given the reluctance of the Republic of Serbia to engage with the principal source of tension between the sides and for the wider region—the refusal to move towards acknowledging the legal identity of the Republic of Kosovo, and also to address the persistent interference by the Republic of Serbia in the internal affairs of Kosovo in the form of its support for the parallel structures of governance maintained by Serbia in Northern Kosovo.

The Dialogue was moribund for a period of nearly two years, until the EU appointed on 2 April 2020, HE Mr Miroslav Lajcak as EU Special Representative for the Belgrade-Prishtina Dialogue and other Western Balkan Regional Issues (EUSR). The mandate of the EUSR was established as follows:

as regards the core of the mandate, to facilitate on behalf of the HR the Belgrade-Pristina Dialogue in close coordination with the Member States, to work on the comprehensive normalisation of relations between Serbia and Kosovo through the conclusion of a legally binding agreement that addresses all outstanding issues between the parties in accordance with international law and contributes to regional stability, and to monitor and assist as necessary the work of the parties on the implementation of past agreements reached within the framework of the EU-Facilitated Dialogue; [Council Decision (CFSP) 2020/489, 2 April 2020.]

This mandate is therefore focused on achieving comprehensive normalization of relations through a legally binding agreement addressing all outstanding issues. The European Parliament has formally and repeatedly confirmed that the sides and the Dialogue must ‘secure without delay a comprehensive, legally binding agreement on the normalization of relations based on the principle of mutual recognition,’ most recently in its decision of 10 May of this year. Pronouncements of this kind must shape the way the mandate of the EUSR is exercised. This requirement has also been formally stated by individual states supporting the Dialogue. US President Biden, in his letters to the sides, has emphasized the need for reaching a comprehensive normalization agreement ‘centred on mutual recognition.’

II. Shaping the Dialogue Only According to Serbia’s Interests

Despite this clear focus of the Dialogue and the mandate for EUSR Mr Lajcak, the Brussels process has largely ignored this overall aim. Instead, there has been an attempt to revitalize the technical discussions and agreements. The Republic of Kosovo has repeatedly pointed to the fact that many if not most of these agreements, now numbering well in excess of 20, have not been implemented by the Republic of Serbia.

However, in accordance with the key interests and demands of the Republic of Serbia, the Dialogue has become focused on one principal item of key concern to Serbia. This is the implementation of the Brussels agreement of 2013, and that only as it concerns the Association/Community of Serb-majority Municipalities proposed in it.

In fact, that agreement contains several elements which Serbia for its part has failed to implement. Rather than taking a balanced view of implementation across all of the agreements reached through the Brussels process, the demand concerning the A/CSM has been allowed to take on a totemic quality, now dominating the present negotiations. In this way, the Facilitation and its international supporters have boxed the sides into what thus far appears to be an unresolvable conundrum.

However, rather than seeking to cut the Gordian knot through innovative proposals in the negotiations, all international attention has been focused on forcing the Republic of Kosovo to accept certain demands on this point. Such unilateral pressure is unlikely to impress a government that has come into power with a strong popular mandate to protect the sovereignty and self-determination of Kosovo.

III. Doubtful Legal Quality of the Agreements now Forced on Kosovo

Kosovo formally and fully ratified the First Agreement of 2013, which introduced the issue of the A/CSM, as an international treaty. However, the Republic of Serbia has not done so. Indeed, it may not even have signed it. It appears to have communicated acceptance indirectly to Brussels rather than the Republic of Kosovo, but the situation has not been clarified by the EU. There has certainly been no signature of both parties to a single text, nor has the Republic of Serbia ratified the agreement as a legally binding treaty.

The Republic of Kosovo is of course scrupulous in relation to treaties it has formally accepted and ratified, provided the other side has done the same and the treaty is in force. Under the given conditions, there is a question about the legal quality of this engagement. At least, there is a pronounced imbalance in relation to its legal quality, Kosovo having ratified and Serbia having refrained from doing so.

The same imbalance exists in relation to implementation. For some reason, it is only Kosovo’s performance that is under review, without any reference to the failures of the Republic of Serbia to fulfil its part of the bargain, if indeed there was a legally established, binding bargain.

More controversially, the EUSR, in his demands and drafts, has elevated a further, second text to the status of supposedly legally binding treaties. This is a text entitled ‘Association/Community of Serb Majority Municipalities in Kosovo—General Principles/Main Elements of 2015. The text offers additional details on implementing the proposed A/CSM.

However, following a reference to its Constitutional Court, the Republic of Kosovo could not ratify that text as a binding agreement. The Constitutional Court had ruled that the text was only partially compliant with the constitutional order of Kosovo and could, accordingly, not be accepted in its current form. Hence, the Republic of Kosovo could not confirm its adherence to that text as a legally binding agreement.

Given the previous practice of the Republic of Kosovo in requiring ratification for the First Agreement, it must have been clear that a second agreement on the same issue would also require such ratification in order to enter into force. This important requirement in internal law was therefore manifest at the international level and can accordingly be invoked as a ground putting the validity of the text into question. In any event, as before, there is no indication of signature or ratification on the part of Serbia either.

Despite these doubts, the Facilitator has simply insisted throughout that the 2013 and the 2015 texts are both equally legally binding upon Kosovo as obligations that must be implemented. This has now been extended even further, including a mere ‘Plan’ for implementation shaped in 2015. The Plan foresaw the drafting of the statute for what was then considered the A/CSM through a so-called Committee of Management—an issue to be addressed later. The plan failed and fell into desuetude. Nevertheless, it was resurrected by the Facilitator and applied against the interests of Kosovo as if it were a matter of legal obligation. In consequence, a draft statute submitted according to that outdated plan, is now formally on the table, supposedly as a basis for negotiations.

The views of the Republic of Kosovo on the legal standing, if any, of the relevant instruments have simply been ignored by the Facilitation. Kosovo’s position has not been subjected to expert review or independent legal opinion. Instead of offering scrutiny according to objective standards, to which Kosovo could not likely have objected, the contested views of the Facilitator on this point were simply imposed as law.

IV. The Franco-German Initiative of 2022

In 2022, France and Germany took the initiative of proposing an interim agreement based on the German-German Basic Treaty of 1972. That agreement cleared the way for East and West Germany to enter the United Nations and it confirmed their relationship on the footing of international law and the UN Charter. Both states agreed to exchange permanent missions and the way was opened for recognition of East Germany by Western states and of West Germany by the Soviet Union and its allies.

This initiative was picked up by the EUSR. However, the one thing this initiative would not offer for the Republic of Kosovo was formal acknowledgement of its status by the Republic of Serbia. Following the German example, which had allowed both states to maintain their differing views on the ‘national question,’ the proposed agreement would be without prejudice to the different views of the Parties on fundamental questions, ‘including the status question.’

The difference, of course, is that in the case of Germany neither of the two states doubted the fact that the other qualified as a state. Their difference related to a rather esoteric question of the continued legal personality of the defeated German Reich after World War II. In this case, though, one side—Serbia—fundamentally questions the legal existence of the other, of Kosovo. Indeed, it retains a constitutional claim to its re-incorporation. This was of course precisely the issue which ‘recognition centred’ comprehensive normalization in a legally binding form was meant to overcome.

In a sense, therefore, the Franco-German initiative accepted that the mandate of the Brussels dialogue would not be fulfilled, at least for some time. This was, however, made up to some extent by the pledge in Article 6 of the draft put forward by Brussels. The very title of the resulting agreement, Agreement on the Path to Normalization between Kosovo and Serbia, [the Basic Agreement hereinafter] would suggest that the instrument would be a steppingstone towards full normalization. Moreover, Article 6 of the Basic Agreement committed the sides to ‘continue with new impetus the EU-led Dialogue process which should lead to a legally binding agreement on comprehensive normalization of their relations.’

While not formally providing for recognition of Kosovo, the Basic Agreement at least would confirm in the form of a treaty the commitment of the sides to good-neighbourly relations, exchange of diplomatic missions, the application of the UN Charter, including expressly the sovereign equality of states and respect for ‘their independence, autonomy and territorial integrity.’ [Article 2.] There was also a commitment to settle disputes peacefully and to refrain from the threat or use of force, as is provided in Article 2 (3) (4) of the UN Charter.

There was also meant to be an opening for possible UN membership, and membership in its specialized agencies, along with other international institutions. However, this requirement is of course somewhat illusory, given the present position of the Russian Federation, which enjoys a veto over the matter. Even in relation to other organizations, the obligation ‘not to object to Kosovo’s membership in international organizations’ in Article 4 would rely on the good faith of Serbia in implementation. In voting against potential Council of Europe Membership for the Republic of Kosovo within days of supposedly accepting the Basic Agreement, Serbia immediate communicated its lack of good faith in this process.

V. Serbia’s Failure to Sign the Basic Agreement and Annex

Despite initial hesitations, the Republic of Kosovo agreed in an unqualified way to sign the Basic Agreement at the High-Level Meeting in Brussels of 27 February. In fact, it offered to sign there and then. This was refused by the Facilitator, out of apparent deference to the Republic of Serbia which was not in a position to do so. Instead, it was argued, signature would follow at another meeting on an Implementation Annex, to be held soon after in Ohrid, North Macedonia, perhaps followed by a more formal signing ceremony in Paris.

Arriving at the High-level Ohrid meeting, the Prime Minister of Kosovo once more reiterated his willingness to sign the Basic Agreement along with the annex to be negotiated, there and then. However, the President of the Republic of Serbia simply declared that he would not sign any agreement, whatever the content of the Implementation Annex that was to be added at that point.

This position met with no resistance on the part of the Facilitator whatever. It appears that this had been expected, and the EUSR had prepared for it. Instead of insisting on equality of treatment of the sides and pressing the Republic of Serbia to sign, in an absolutely astonishing move, the Facilitator placed a blank signature page in front of the Prime Minister of Kosovo, demanding that he alone would sign. Unsurprisingly, he did not comply.

There then followed an unceremonious wrangle about the Annex, which for Kosovo had lost its meaning at this point (more on this below), and an attempt to rescue the meeting and the entire process from collapse. In a gesture meant to facilitate this aim, Kosovo in the end agreed to a solution whereby the parties were taken to have signalled their assent to the Facilitation, rather than to one another, thus bringing the Basic Agreement and the by then stunted Annex into operation.

Yet, even before this result could be announced by the High Representative of the European Commission for Foreign Affairs and Security Policy, Mr Josep Borrell, the President of Serbia was already addressing the Press, announcing that he had not agreed to anything at all. Repeated several times since then, the President of Serbia has declared:

I did not accept the Franco-German agreement. You have no such statement from me. I said that I accepted the concept and that we are ready to work on the implementation of the agreement up to certain limits.

This has remained Serbia’s position since then. President Vucic seems to argue that Serbia is not bound by the Basic Agreement and that it may implement only those provisions it freely choses.

VI. Acceptance of Serbia’s Claim Not to be Bound in Actual Fact

The EU and friendly governments, including the US, have asserted that the Basic Agreement is in fact a binding international obligation. However, in practice, this has had no effect. Rather, the opposite has occurred. The Facilitation is exactly following the line offered by the Government of Serbia. It has not insisted that the agreement is binding in relation to the Republic of Serbia and must be formally declared by it to have this status, at least not in any way that has had any practical effect. In fact, the Facilitation has embraced the very approach adopted by the Republic of Serbia. It has only and exclusively pursued the issue or issues of interest to the Republic of Serbia in the follow-on negotiations after Ohrid. Accordingly, all discussions have focused on the mechanism to implement Article 7 of the agreement.

Of course, the argument of the Republic of Serbia that it will not, and cannot, sign any agreement with Kosovo, is simple non-sense. True, the procedure of manifesting agreement to a text through an informal communication to the Facilitation, rather than to the other side, was applied on a number of instances in deference to the Republic of Serbia. Yet, Serbia has in the past signed formal agreements with Kosovo, including under the umbrella of the EU-led normalization process. For instance, the agreement on ‘Justice’ adopted in the normalization process was formally signed by the sides.

This case is different in any event. The very essence of this new, ‘Basic Agreement,’ was very much that it would be a formal agreement. That is the very expectation the Republic of Kosovo was counting on and which persuaded it to offer signature, despite certain hesitations. Evidently that was also the expectation by the EU and supporting states. Otherwise, why prepare for a high-level signing ceremony in Paris?

Obviously, there is no point in signing an agreement with the Republic of Kosovo declaring that relations will be conducted in accordance with international law, if Serbia refuses, at that very point, to engage with Kosovo at the level of international law and sign a formal agreement. This negates the very concept of the Franco-German initiative. The Republic of Serbia would be allowed, for now, to retain its view on status de jure, while treating Kosovo as a full subject of international law de facto.

The very fact that the Facilitation is allowing the Republic of Serbia the benefits of the Basic Agreement and Annex without requiring it to sign exhibits the extraordinary imbalance in the approach to the negotiations throughout. What the Republic of Serbia is unwilling to do is somehow acceptable, even if it conflicts with the essential object and purpose of the agreement at hand. Kosovo’s views, on the other hand, are not engaged with. Instead, the Republic of Kosovo is subjected to pressure in order to make it accept the outcome and implement it, however, unbalanced.

The Republic of Kosovo has formally requested the Facilitator to present an implementation plan that would balance performance of obligations under the Basic Agreement. This had been the case in the original draft Implementation Annex that had been on the table for some four months, until it was suddenly overturned without any consultation on the very eve of the Ohrid negotiations.

By now, the Facilitator has answered this request with the formula that the Republic of Serbia would not accept such an approach—the very approach of the Facilitation that had underpinned all discussions since the draft Annex had been presented on 4 December. Instead, again, the standard according to which the negotiations are now conducted is to accommodate any obstructive behaviour of the other side, including its claim that it is for Serbia to pick which of the obligations contained in the Basic Agreement and Annex it wishes to implement. It is difficult to see why the Republic of Kosovo should be in any way impressed with this argument, which simply complies with the claim of the Republic of Serbia that it is not actually bound by the Basic Agreement.

VII. Upsetting the Balance of Interest Underpinning the Supposed Agreement

This has resulted in an entirely unbalanced negotiating format which the Republic of Kosovo cannot be reasonably expected to support through its further participation. If the Basic Agreement is binding, it is binding in all its aspects. And it is the very essence of an international agreement that one side cannot be privileged by allowing it to determine which, if any, of the obligations contained in the agreement, it wishes to consider for implementation.

In addition to having lost the sequencing of the obligations, and a sense of balance of performance of the obligations by the sides, the present approach also leaves out some of the less tangible provisions of the Basic Agreement that are of particular interest for Kosovo. These are provisions on good neighbourly relations, compliance with UN principles, sovereign equality, independence and integrity, etc. At present, there is no consideration whatever of the import of these provisions where implementation is concerned. Yet, as the Basic Agreement and Annex state expressly, Kosovo is entitled to insist on implementation of all of its provisions, including those of a programmatic character.

Indeed, this is the very point that has entirely upset the balance of obligations that Kosovo was entitled to expect when it agreed to the Basic Agreement. While there would be no formal recognition of Kosovo by the Republic of Serbia, at least Serbia would have formally signed an agreement in international law, and one in which it confirms the application of the basic rules and principles of international law in relation to Kosovo. This would have been an important step for Kosovo in its attempt to expand its relations with third states, including the five EU non-recognizing states, and to gain membership in further international institutions. Again, this was the key benefit that impelled the Republic of Kosovo to accept the Basic Agreement, despite certain hesitations on other points. Removing that benefit entirely unhinges the supposed agreement.

Rather than adjusting the process to take account of this imbalance, the Facilitation has simply marched on as if the Basic Agreement and Annex are fully in force in view of both sides. Indeed, it has generated considerable international pressure on the Republic of Kosovo to start performing the one key contribution in implementation that is most difficult for Kosovo. At the same time, there is no prospect for other elements of implementation.

VIII. Material Breach

The Republic of Serbia does not even acknowledge that it has concluded a binding agreement and has accordingly repudiated it in the sense of Article 60 of the Vienna Convention on the Law of Treaties, should the Republic of Kosovo wish to invoke that provision. Hence, it would not even be necessary to resort to the doctrine of material breach, which protects the one party in cases where the other fails to comply with the terms of one or more provisions essential for the achievement of the object and purpose of a treaty.

Moreover, the very week following the supposed conclusion of the agreement, the Republic of Serbia started violating it. One of the obligations that enters into force immediately upon conclusion of the agreement requires the Republic of Serbia ‘not to object to Kosovo’s membership in any international organization.’ Serbia objected to Kosovo’s membership in the Council of Europe in the clearest possible terms, formally voting against its case for admission within days of having supposedly concluded the agreement.

The Republic of Kosovo has notified the Facilitator of this and a range of other violations. There has been no significant response, despite the particular role foreseen for the Facilitator in ensuring implementation in what remains of the Annex to the Basic Agreement. Once again, the approach appears to be to tolerate the unlawful actions of Serbia, while nevertheless increasing the pressure on Kosovo to perform its obligations under the Agreement.

IX. An Unfair and Unbalanced Process: The Example of Ohrid

This imbalance of substance is also reflected in an imbalance of process. The Ohrid debacle serves as an example. As already noted, a compact draft Implementation Annex of 8 Articles had been the basis for discussion with the sides since 4 December. A week before the launch of the Ohrid round of High-Level Talks, the Facilitator visited the two capitals, soliciting further inputs. Kosovo offered a range of constructive suggestions. The Facilitator left, indicating that roughly half of these were acceptable and would be acted upon.

The Kosovo delegation was scheduled to leave for Ohrid on the morning of 17 March. At around 9 pm on the eve of departure, well after close of business, a single copy of a revised draft annex was handed to the Kosovo government.

The government was left under the impression that it would not even be permitted to photocopy that one copy of the document handed over in order to assist the discussion among its key members. While the Facilitation has denied having made this injunction, this was certainly the impression gained at the very top of the Government of Kosovo. True or not, the fact that the government actually complied with this unusual demand, handing the one copy around its key members for study throughout the night, offers an insight into its wish to act in compliance with the procedures established by the Facilitation, however absurd they may have seemed.

At any rate, well into the night, on the eve of departure, an entirely new version of the Annex had arrived, consisting of 18 rather than the previous 8 paragraphs and three pages rather than the previous single page.

None of the more substantive comments provided by the Republic of Kosovo had been taken account of. Instead, the balance of obligations had shifted in a number of very important aspects even further in favour of the Republic of Serbia. Several of these quite dramatic changes were later claimed to be drafting errors, which, even if true, would shine an unflattering light onto the competence of the Facilitation in this entire venture.

This unilateral overturning of the terms of business on the eve of departure was immediately resisted by key EU governments which had apparently not been consulted about these very significant adverse changes for Kosovo. This included the Facilitator appointing himself as final arbiter over the issue of the mechanism for implementation of Article 7, transforming the discussions on the Serb Orthodox Church from contacts between the Church and the authorities of Kosovo into discussions between Serbia and Kosovo, restricting the obligation of Serbia not to obstruct Kosovo’s membership in international organization only to European organizations (i.e., not the UN and its family of organizations), passing the powers and functions of the illegal parallel structures on to the Article 7 mechanism and thus, after all, forming an additional layer of governance, etc.

Before formal discussions commenced, the Kosovo delegation was assured that at least some of the changes that had been made abruptly and without justification or explanation would be walked back before the commencement of negotiations the next morning. However, this did not occur and the negotiations commenced on the basis of the document that had been changed unilaterally and so dramatically, despite even the protestations of key EU member states.

Having to negotiate on this basis represented a significant disadvantage for Kosovo. Indeed, it should perhaps have considered delaying the further process until and unless this unilateral act had been corrected. Nevertheless, in the interest of progress, its delegation set to work offering detailed comments even on the new draft, thus treating it as the basis for discussion. Of course, the moment the Republic of Serbia announced that it would not sign, whatever the outcome of further discussions, there was no longer any point to these negotiations. The process degenerated and, in the end, an odd skeleton of what remained of the Annex was appended to the Basic Agreement.

That final version of what remained of the Annex dropped the previous assertion by the EU that certain obligations in the Basic Agreement relevant for both sides, or particularly for Kosovo, would only enter into force upon prior unilateral performance by Kosovo of certain of its obligations. Hence, all obligations in the Basic Agreement are in force, assuming the Basic Agreement is in force. Accordingly, all obligations must be implemented. There is no priority assigned to implementing the one obligation over another, contrary to the approach taken by the Facilitation at present. The refusal on the part of the Facilitator to establish a clear, balanced and realistic implementation plan is not consistent with this outcome.

X. Implementing Only Article 7, and Even Then, Only Parts of It

For now, the entire further negotiating process is focused on Article 7. In fact, the Facilitation has proposed to establish a separate, dedicated track of negotiations just on one aspect of implementing Article 7. In this context, there is repeated reference to an A/CSM, rather than using the terminology now determined by the Basic Agreement.

The Basic agreement departs from previous arrangements and language in relation to this issue. Article 7 concerns not an A/CSM, but:

… specific arrangements and guarantees, in accordance with relevant Council of Europe instruments and by drawing on existing European experiences, to ensure and appropriate level of self-management for the Serbian community in Kosovo and ability for service provision in specific areas, including the possibility for financial support by Serbia and a direct communication channel for the Serbian community to the Government of Kosovo.

This language, contained in an agreement subsequent to that of 2013, and also to the supposed arrangement of 2015, now applies to this particular issue. The task is to ensure an appropriate level of self-management focused on service provision in specific areas. Kosovo is entitled to point to this language as framing and controlling the discussion on this issue. While the Basic Agreement and Annex also refer to previous agreements and arrangements, this new language delineates the issue in question and the way it is to be addressed from this point onwards (lex posterior derogat legi priori). There would have been no point in drafting the obligation in this rather complex way, if there was no meaning to it, and if previous practice and reliance only on previous documents was simply meant to continue.

As is well known, this is an area that is highly sensitive for the Government of the Republic of Kosovo. Nevertheless, at the High-level Meeting in Brussels of 2 May, the Prime Minister offered a vision on how this issue could be approached. However, there has been no informal or constructive exploration of the ideas contained in the vision. Comments received have instead focused on more peripheral issues. Rather than engaging with the substance of the vision and the example used in support of it, the Facilitation has offered rather stiff and haughty answers to Kosovo’s written submissions on this and other matters.

XI. The Aim of the Agreement of 2013

Then EU High Representative Baroness Ashton confirms that the provisions of 2013 on the then A/CSM were actually meant as a means of addressing a key concern for Kosovo. This was the ending of unlawful parallel structures of governance in Northern Kosovo, in part remotely piloted by Serbia. Establishing the A/CSM was meant to offer to the local, mainly ethnic Serb population, a reassurance that withdrawal of these unlawful parallel structures would not leave them without any means of coordinating action taken individually by ethnic Serb majority municipalities within their competences and enhanced competences.

Starting with the Rambouillet negotiations, and throughout the Ahtisaari process, it had always been clear that Kosovo could not accept the creation of a further layer of governance in Kosovo, between the Kosovo-wide level and the level of municipal governance. This was in fact fully accepted by the Ahtisaari team, given the unhappy experience of Bosnia and Herzegovina with extensive autonomy settlements.

However, in the Basic Agreement of 2013, Kosovo offered to give to the municipalities a mechanism through which they could coordinate their policy and action relating to the competences and enhanced competences they enjoyed under the Ahtisaari document and the Kosovo Constitution. These would not be fresh, or yet further competences. It would concern the exercise of existing competences. Moreover, each municipality would take the action agreed through the consultation mechanism of the A/CSM individually. The A/CSM would not enjoy its own executive authority.

This was however conditioned on achieving at the same time the termination of unlawful parallel structures. That balance of the bargain of 2013 has been lost in the present debate. All attention is focused on the issue of the A/CSM, but none is directed towards the balancing aim of finally addressing the issue of parallel structures.

XII. Unbalanced Methodology

Ignoring the views of the Republic of Kosovo makes it somewhat unreasonable to expect the Republic of Kosovo to sign on to a process that follows the ‘methodology’ adopted thus far. Thus far, the Facilitation has followed the practice of putting forward a document it has drafted. Having heard the sides, it will then put forward a revised version. This has generally accommodated only the views of the other side, the Republic of Serbia as at Ohrid, while disregarding the views put forward by the Republic of Kosovo in a significant way. That version is then declared by the Facilitation to be essentially immutable (as was the Basic Agreement after comments were received), or that it will serve as the basis for negotiations, as happened at Ohrid.

Taking such an outcome as the ‘basis for negotiations’ means that, unless both delegations support a change, the text will remain unchanged. If the text that has been put forward has been shaped to attract acceptance of Serbia, but not of Kosovo, then this approach is manifestly unfair and unacceptable. As the Facilitation now finds, it is also not productive. An outcome generated in this way will not, in the end, be adopted by the Republic of Kosovo. Interestingly, in this instance, even Serbia has not found it necessary to accept the outcome formally, however much it was twisted in its own interest, knowing that it could collect the benefits in terms of Kosovo’s performance of its obligations without even offering signature and full performance in return.

XIII. The Issue of the Management Committee and its Draft

One such issue concerns the role of the so-called Committee of Management. Back in 2015, it was envisaged in a mere ‘Plan’ that the four local Mayors in the municipalities concerned would constitute this Committee which would present a draft statute for what was then described as the A/CSM. The ‘Plan’ was of no or at best highly uncertain legal standing. It has in any event been overtaken by time and events on which its functioning would have relied, having foreseen action within days and months rather than years. Yet, the Facilitator insisted that the Committee of Management would now, eight years later, submit the draft statute.

Kosovo objected, noting for instance, that one of the members of the Committee of Management was a serving member of the parliament of the Republic of Serbia. This was clearly a violation of the letter and certainly the spirit of the original instrument. After all, the person concerned, Ms Danijela Vujicic, was sworn in as MP of the parliament of the Republic of Serbia on 3 August 2020. According to her oath, she is bound to ‘serve the citizens of Serbia,’ constituting a clear conflict of interest in this respect. After all, in her role as member of the Committee of Management, she is required to represent the citizens of Kosovo in the relevant municipality,

When this was challenged by the Republic of Kosovo, the answer of the Facilitator was that the relevant instruments did not expressly rule out this possibility. Hence, the representation of a member of the Serbian parliament could not be opposed, whatever the underlying rationale of the complaint. By the same token one might argue that a hippopotamus could serve as a member of the Committee, as that contingency, too, has not been ruled out expressly.

The Facilitation gave an explanation for its conduct that was, at best, ignoring the aim and spirit of the provision in question, and at worst somewhat insulting in relation to the Republic of Kosovo. This reading of the arrangements ensured that Serbia, which controlled the Committee of Management through its personnel or individuals depending on it, would be represented twice. Once as the drafting body for the statute, and a second time as the negotiating party in considering that draft.

The Committee of Management was also allowed to disregard the very Plan on which its participation relied. According to the Plan, it was meant to function and coordinate its action with the Kosovo Ministry for Local Government. The Committee failed to engage with the Ministry, despite requests to do so. Kosovo, under whose authority the supposed Committee was meant to operate, did not even have sight of the draft before submission to the Dialogue.

Moreover, in discussions aiming to encourage Kosovo to participate in this process of the unveiling of the draft by the Committee of Management, the Facilitator and supporting governments had given strong assurances to the Government of the Republic of Kosovo. Kosovo understood that the draft, if not consistent with agreed criteria to be noted below, would be ruled inadmissible. Instead, Kosovo would then be able to present a balanced and credible draft that would serve as the basis for discussion.

This understanding was not complied with. The draft of the Committee of Management was received. From the perspective of Kosovo, it was entirely out of order, representing a kind of autonomy design that had been expressly excluded by the Facilitator and supporting states as a possible model or basis for discussion in the dialogue. The example of Republika Srpska had been invoked often in evidence of the fact that such a design could not and should never be put forward.

XIV. Partial Vision of Article 7: The Issue of Parallel Structures

As was noted above, what was in 2013 described as the A/CSM was conceived as a means to bring to an end the unlawful activities of parallel structures. This would need to have two aspects. Those activities for which there exists no lawful jurisdiction exercised by the municipalities of the area would need to be brought to an end. On the other hand, the exercise of the competences and enhanced competences lawfully enjoyed by the municipalities individually, though in coordination with one another, could be facilitated through the A/CSM as parallel structures would be terminated.

In the draft Implementation Annex of 16 March, it was proposed that ‘all remaining Serbia-administered structures and services in Kosovo will transition to the mechanism that will be created as part of ensuring an appropriate level of self-management for the Serbian community in Kosovo.’ Given the breadth of the activities of unlawful parallel structures at present, this would have meant that the Article 7 mechanism would become a very powerful further layer of government and an executive agency taking over the administration of parallel functions from Serbia—the Srpska model, which had been excluded by all from the beginning.

To its credit, the Facilitation explained at Ohrid that this had been a drafting error. The intention had been to ensure that the parallel structures would be withdrawn. Lawful functions would then be carried out instead by the individual municipalities, although in cooperation with one another arranged through the Article 7 mechanism.

Article 7 of the Basic Agreement does in fact provide for the means of addressing parallel structures. The mechanism to ensure an appropriate level of self-management foreseen in that article is balanced by a further instrument. This is agreement with the Republic of Serbia on the possibility for continuing financial support of some of the functions and powers lawfully assigned to the municipalities. If there is a transparent mechanism involving the authorities of the Republic of Kosovo through which this funding is transmitted, this would essentially end the operation of parallel structures, at least in areas that fall within the competences or enhanced competences of the municipalities.

Again, though, this balancing fact has been entirely ignored in the discussions about Article 7. All attention, and very significant pressure, is directed against the Republic of Kosovo to offer a statute for the mechanism, without any attention being paid to addressing the very issue that led to the inclusion of this issue in the First Agreement of 2013.

XV. The Facilitator as the Zar

The result is that there is now the lengthy and in view of Kosovo entirely unacceptable draft of the supposed Committee of Management on the table as a basis for discussion. The Government of Kosovo has been requested to submit its own draft. The expectation is that there will then be negotiations leading to the adoption of a proposal that, in view of the Facilitator, represents an acceptable solution lying somewhere between both drafts.

In the draft Implementation Annex proposed the day before departure for the Ohrid meeting, the Facilitator assigned to himself the role of ‘final arbiter’ in relation to any issue of implementation not resolved by agreement of the sides in the Joint Committee tasked with resolving disputes among the parties, also to be chaired by him. This suggested to Kosovo that the Facilitator would, in the end, simply impose his vision of what the Article 7 mechanism would look like in his role of ‘final arbiter.’ This is reminiscent of the role of a High Representative in instances of international governance of a territory, for instances formerly Bosnia and Herzegovina, or, indeed, Kosovo under UNMIK governance. It appeared to return Kosovo to the state of affairs that had prevailed immediately after the conflict of 1999, before it emerged as a fully sovereign state.

Then, as now, this finding of the ‘final arbiter’ could then be enforced against Kosovo through international pressure. In this way, actual or virtual autonomy for Norther Kosovo could be imposed on Kosovo, the territorial sovereign over the territory at issue, putting the sovereignty and territorial integrity of Kosovo in question.

This proposal was eventually abandoned in the chaotic proceedings at Ohrid. However, it has been revived in a somewhat different form. The Facilitator has now suggested a Methodology for the Negotiations on the Statute for the Establishment of the Association/Community of Serb-Majority Municipalities. Incidentally, that title goes back to 2013 and does not reflect the agreed language in Article 7 of the Basic Agreement.

In substance, the proposal suggests that the Facilitator shall take account of the views of the sides on a draft statute. Each of them can register objections, but it appears that it will be the Facilitator who produces the statute in the end. Objections would not mean that the text of the draft statute has not been finalized. Rather, they would only be recorded in notes accompanying the draft statute developed over the objections of a party. In practice, this would be irrelevant. The document would stand as the final outcome, whether or not objections have been recorded.

Again, the Republic of Kosovo can hardly be expected to abandon its sovereignty over its own territory to the extent of having a statute to which it maintains objections imposed upon it in the end.

The same also applies to the proposal of the Facilitator to establish a separate negotiating mechanism focused on the Article 7 mechanism alone, held at the technical level only (five technical experts per side) and subject to the overall guidance and ultimate control of the Facilitation as just noted.

Once more, it must also be recalled that Article 7 is not the only provision in the Basic Agreement. The Republic of Kosovo may be unlikely to agree to separate negotiations on that one issue and address it in isolation through its own, separate mechanism. In fact, even Article 7 includes two other, related elements, neither of which would be included in that specialist working group. Hence, if there is to be further discussion on implementing Article 7, it will likely need to be at the level of Chief Negotiator, as has been the case throughout. Each delegation is always free to include whichever technical experts it wishes.

XVI. Repudiation by the Facilitator of his own Commitments

It is true that the Basic Agreements contains a commitment to take action in relation to the Article 7 mechanism. However, that is the mechanism as described in the precise language of that agreement—a mechanism to ensure an appropriate level of self-management for the Serbian community in Kosovo and ability for service provision in specific areas, not an A/CSM. Moreover, Kosovo weighed its decision to accept the agreement very carefully. It accepted on the basis of the very firm commitments it had received repeatedly and consistently before taking that decision.

The first such commitment was given by then High Representative Federica Mogherini in 2015. That commitment is in writing and very specific and precise, confirming that what was then termed an A/CSM would not amount to a further layer of governance in Kosovo. Moreover, that body would not have any executive powers.

The second layer of commitment was given by the Facilitator himself, backed by supporting states, in particular the United States of America. These commitments make it clear that the body will have a coordinating function only. Again, there will be no executive powers. In addition, it was made clear by the Facilitator and partners that the statute must be compliant with the constitution of Kosovo and the relevant ruling of the Constitutional Court and will be vetted by that Court before it can be adopted. A precis of some of these commitments is attached to this note.

Third, there is the text of the Basic Agreement itself. Its language clarifies, for instance, that the function of the Article 7 mechanism concerns self-management in relation to service provision in specific areas. That is to say, its scope is limited to the kinds of practical arrangements the individual municipalities can undertake within their jurisdiction.

Fourth, there is international law itself which imposes certain requirements on both sides and the Facilitator. For instance, it would not be possible to provide for a mechanism that stands in conflict with the obligation of non-discrimination. This was demonstrated by the Finci case on the Dayton agreement for Bosnia and Herzegovina decided by the European Court on Human Rights.

When the Republic of Kosovo recalled the commitments given by the Facilitator before accepting the Basic Agreement and Annex, it received an extraordinary answer. Rather than confirming his own commitments and those of the EU given at a higher level, he declared that he could not be solely bound by those documents, ‘although the EU does not exclude to be guided by at least some of them when establishing the A/CSM.’

Incidentally, this imperious wording suggests, again, that it will be the EU rather than Kosovo that will establish the Article 7 mechanism—an item the Facilitator still refers to as the A/CSM, despite the clear designation in the Basic Agreement.

In terms of substance, though, the courage of the Facilitator in making this point, and in writing, must be rather unique in diplomatic history. The Special Representative is a creature and instrument of the EU. He is bound by the mandate given to him, to facilitate, not to mediate or even impose. He is also bound by the commitments given by his organization at a high level and in a formal way. In this instance, this is a formal assurance given by his superior officer, the then Vice President of the European Commission and High Representative for Foreign and Security Policy, in relation to the 2013/15 arrangements. These are the very arrangements which the Facilitator claims are binding on Kosovo and controlling in relation to the issue at hand. Kosovo does not believe that the EU has the intention, or ability, to disown assurances, so clearly given, without at the same time relieving Kosovo of the consent it is supposed to have given in reliance on these assurances.

Second, it is stunning to observe that the Facilitator does not regard himself bound by his own assurances, given only weeks before, when trying to persuade Kosovo to accept the Basic Agreement. Now that Kosovo has accepted, these seem to be disposable and may or may not be relied upon at the sole discretion of the Facilitator. In any other context, conduct of this kind would be considered a breach of faith. The Republic of Kosovo might be forgiven in losing faith in the entire negotiating process as led by the present Facilitator.

XVII. Overall Attitude

Kosovo has repeatedly voiced its concerns in a rational and reasonable way. These have not been taken into account in a meaningful way. Despite the considerable shift in the burden of obligations and benefits caused by the refusal of the Republic of Serbia to formally sign the Basic Agreement, the negotiations are continuing as if no change has occurred. This and other issues have only been answered in techy, imperious and narrowly technical replies that miss the points raised entirely.

For instance, the Republic of Kosovo objected to the various statements made by the President of Serbia after the supposed conclusion of the Basic Agreement and Annex, also reflected in various letters addressed to the Facilitation. These statements and letters seem aimed to reserve the position of Serbia inasmuch as they claim that no binding agreement with Kosovo was achieved, and that it will pick any obligations it choses for implementation if any.

Rather than addressing the overturning of the balance of obligations that would occur if this position were to be maintained, the Facilitation treated the Government of Kosovo to a dissertation on the international law on reservations established in the Vienna Convention on the Law of Treaties.

True, there can be no reservations to bilateral treaties. Reservations have to be made in a timely matter and addressed to the other party or the depository. But this is the very essence of the complaint. According to the Vienna convention, unilateral statements, however phrased or named, that purport to exclude or modify provisions of a bilateral treaty amount to an offer of a fresh treaty. They would confirm that no treaty has in fact been reached. In the alternative, if these are designated as so-called interpretative declarations, stating how a party intends to interpret particular provisions in an agreement, these are inadmissible if they do in fact purport to exclude or modify elements of a treaty.

In this instance, it would be the role of the Facilitator, who appears to act in the role of a depository as he received the supposed assent of the sides, to formally reject any unilateral acts of the Republic of Serbia that overturn the very object and purpose of the agreement in question. This expectation applies whether such statements are made at the time of supposed acceptance of the text or subsequently, and whether designated as reservation, interpretative statements, or something else.

Letters reflecting the kind of statement noted above would in fact amount to a formal disowning of any agreement (’I did not accept.’) Again, whether made in public or in letters addressed to the Facilitator, it is this attitude to which the Republic of Kosovo is certainly entitled to object. And such objection deserves a substantive answer and, indeed, action by the Facilitator.

More generally, as in previous negotiations involving the Republic of Kosovo, the attitude seems to be to negotiate what is thought by the Government of Kosovo to be the agreed outcome, and then to refer the issue to Belgrade for the actual negotiations. In order to entice the Government of Serbia to accept it, the outcome will then be fundamentally revised, unilaterally and against the interest of the Republic of Kosovo. The assumption is that Kosovo can in the end be pressured into acceptance of such an unbalanced outcome.

Of course, in literally all past instances, Serbia has relied on this perhaps somewhat naïve and certain inequitable approach by the international interlocutors to obtain maximum concessions, while in the end not signing up to the outcome anyway (Rambouillet, Ahtissari, Basic Agreement).

This is exactly what happened the night before departure for Ohrid. Kosovo had prepared to engage with the draft Annex, on the table for the past four months, in considerable detail. Then, a new, entirely different version accommodating Belgrade was presented as a surprise. However, when the Republic of Serbia nevertheless refused to sign any Agreement and Annex, the Facilitation still complied and imposed an outcome where the Republic of Serbia is, in effect, allowed to pick and choose which, if any, obligations it might implement; not as a matter of legal obligation, but as a matter of choice. Kosovo, on the other hand, is required unilaterally to implement the one obligation that is most difficult from its perspective.

While having caused the Republic of Kosovo to question its faith in himself and the process, the Facilitator nevertheless persists in assigning to himself the power to rule on key issues for the sides, and to implement them. This is unlikely to be acceptable for the Republic of Kosovo.

In addition, there is no clear perspective of how overall implementation will proceed. The Facilitator has refused offering a clear, sequenced and timed implementation plan that weights the obligations of both sides against one another and establishes some form of equilibrium, as was attempted in the draft Annex of 4 December.

There is also no assurance of how the commitment to pursue full, final and recognition-centred normalization will proceed—a process that was meant to gain additional impetus according to Article 6 of the Agreement.

The reason given by the Facilitator for these failings is that Serbia would never accept such an approach to the future talks on implementation or overall normalization, however balanced it may be. Hence it would have to be abandoned.

For the Government of the Republic of Kosovo, answers of this kind confirm again that this process is not run as a genuine negotiation amongst equals. The EU is keen to attract Serbia into the organization. This emphasis has gained weight with the present conflict resulting from the aggression and invasion conducted by the Russian Federation against Ukraine.

The Republic of Kosovo has made it clear that it is fully supporting the aims of the EU and other key states in relation to Ukraine, and the future shape of a stable and democratic Europe. While the Government of Kosovo has doubts as to the genuine interest of the Serbian leadership to pursue Euro-Atlantic integration, it has no wish to frustrate the EU’s plans and hopes in this respect.

Then, again, it seems clear that Kosovo will and must negotiate for the interests of Kosovo, and not for other aims. As in the past, one may surmise that it remains willing to engage in the genuine give-and-take in negotiations of this kind. However, it is not likely to encourage a process aiming to press outcomes on it which it has not freely agreed to.

Given this overall situation, made more complex by recent developments in Kosovo, it is evident that the talks are at risk of failure, and so is the entire normalization process. The welcome Franco-German initiative and the resulting Basic Agreement have been profoundly mishandled. True, there has been a ‘reward’ in terms of progress towards Council of Europe membership. However, this is a factor extraneous to the Basic Agreement or the Brussels process and may now be in jeopardy in any event.

The Franco-German initiative was meant to advance and stabilize relations between the sides pending full, comprehensive normalization in a legally binding way. Instead, in the way it was handled, it has upset relations between the sides. The agreement would have offered a balance of mutual obligations. But a profound imbalance has resulted from the approach of the Facilitation, which has taken the positions of Serbia as unshakeable fact, and the views of Kosovo as dispensable irritations.

The Republic of Kosovo has received none of the benefits foreseen in the agreement itself. The very fact of failing formally to sign and accept the agreement has entirely removed the effect of the agreement Kosovo was counting on as far as its relations with third states and organizations is concerned.

In the latter aspect, Serbia has already openly flouted its commitment clearly established in the agreement not to obstruct Kosovo’s drive to achieve membership in international organizations. And it retains the view that it alone will determine which, if any, commitments from the Basic Agreement it will implement. Kosovo, on the other hand, is supposedly forced to implement the key issues of interest to the other side—a side that does not even accept that it is a party to the agreement in relation to the Republic of Kosovo.

In fact, this episode has now focused the entire normalization process on the totemic issue of what was previously known as the A/CSM, now the implementation of the Article 7 mechanism. There is little incentive for Kosovo to allow itself to be sucked up by this dynamic that so clearly runs against the promised aims and structure of the process, which is meant to be focused on recognition-centred, comprehensive normalization in a legally binding form.

XVIII. A Way Forward?

This may therefore be a moment for the EU as the international institution mandated to lead the normalization dialogue to reflect on the present state of affairs. If the dialogue is to continue, it needs to be balanced and fair. It cannot be a mechanism that accommodates one side only, in view of broader strategic interests, and disregards the other. It cannot be a process that imposes outcomes on the one side that has, in fact, accepted and indicated repeatedly its willingness formally to sign the Basic Agreement and Annex.

Indeed, the President of Serbia has indicated constantly that he will never ever move towards acknowledgement of Kosovo’s status and hence towards comprehensive normalization in a legally binding form. The EU may need to face the prospect that the entire normalization process and its supposedly recognition centred focus is a mirage.

If so, then the target of international pressure should be the Republic of Serbia, rather than Kosovo. Kosovo has accepted all international attempts to address the crisis involving Kosovo from the Rambouillet agreement to the Ahtisaari negotiations and now the Brussels Basic Agreement. Serbia has never accepted a single one of these. Nevertheless, it is Kosovo that finds itself in the dock, threatened with sanctions and unspecified ‘measures’ by its friends and allies.

The Republic of Kosovo cannot be expected to respond positively to pressure for implementation of previous agreements, and now the Basic Agreement and its Annex, if the entire process is based on the illusion that eventually, Serbia will come into line and also accept its own obligations. At some point, there has to come a moment of truth. Does the Republic of Serbia accept normalization or not? If so, at a minimum it must be expected formally to sign the Basic Agreement. That agreement was deliberately and rather generously framed by its intellectual parents, France and Germany, and the EU as merely a ‘step on the path towards normalization,’ allowing Serbia to progress without formally acknowledging the status of the Republic of Kosovo. This runs against the interests of Kosovo, but was accepted by Prishtina in deference to its international partners.

To be clear, there are no indications that the Republic of Kosovo is aiming to disown the Basic Agreement and Annex, despite the unfortunate circumstances of its birth. To the contrary, it has to be ensured that the Basic Agreement is equally binding for both sides. If the other side asserts that it is not so bound, both inside and outside of the process, then there is no Basic Agreement. Similarly, the Republic of Kosovo cannot be expected to offer full compliance if the other side reserves the right to pick and choose which, if any, of its own obligations it regards suitable for implementation.

Where Article 7 is concerned, the commitments made by the EU need to be respected along with the very wording prescribing the modalities of its implementation. All elements of Article 7, and indeed all elements of the Basic Agreement and Annex, including programmatic provisions, have to be implemented. Moreover, there has to be a balanced implementation process that offers equal benefits to both sides according to clear sequencing. Finally, the perspective for implementing Article 6 on renewed impetus for reaching a recognition-centred, comprehensive and legally binding normalization agreement must be firmly established.

It would be a mistake to consider these points as conditions that Kosovo might wish to impose on the process. Rather, there is a need to bring the process back into alignment with legitimate expectations and its actual mandate. The points noted above are the very commitments made by the EU and supporting states. Moreover, they flow from the Basic Agreement and Annex itself, and also from the general principles of neutrality and equal treatment that must underpin negotiations of this kind.

ANNEX:

ASSURANCES FROM EUSR HE MIROSLAV LAJCAK

AND THE UNITED STATES

KOSOVO WILL DRAFT THE STATUTE [not the Committee of Management]

Lajcak said he reassured Kurti that the details of the association would be “drafted by you and agreed on by you.”

“You won’t write something you don’t agree with. The second point is that there are existing models, functional European models. I have 15 minority protection analyses on my desk in Brussels. Some of these models you may not have heard of. None of them has caused non-functionality where applicable,” Lajcak continued.

He added that a lot of time is being wasted talking about something “that doesn’t exist and something that you are going to co-author.”

27 January 2023, 

Instead, we are asking Kosovo to provide its vision for this Community and we are ready to provide expertise and political support to ensure that it functions in the best interest of the citizens of Kosovo.

US, Chollet and Escobar, 30 January 2023,

COMPLIANT WITH KOSOVO LAW AND THE CONSTITUTIONAL COURT RULING

On the issue of the Association of Serb-majority municipalities, Lajcak said he knows “the ruling of the Constitutional Court almost by heart and it says that the Association should be formed”.

“The Government should take into consideration the findings of this Court. I think the conclusions are clear and the ruling states that the statute of the Association should be drafted and the legal act of the Government should take into consideration the conclusions of the Court,” he said.

Lajcak also said that Kosovo will not be forced to accept anything against the legal system.

24 February 2023, 

Also TV interview immediately after finalizing the Basic Agreement:

Article 7 says one thing which is very important – that there can be no agreement on normalization of relations between Kosovo and Serbia without providing constitutional and institutional protection of the Serbian community in Kosovo. This is what Article 7 is about. The details need to be agreed among the parties within the dialogue on the basis of the 2013 and 2015 agreements, taking into account the Constitutional Court opinion and also getting inspiration from existing and well-functioning European models.

11 March 2023,  

Today’s discussion reflects the importance the United States and our partners place on Kosovo implementing an Association of Serb-majority Municipalities that complies with Kosovo’s Constitution and the 2015 Constitutional Court decision.

While several U.S. officials have already made this point, I also want to be clear about the position of the United States. We do not support any arrangement that violates Kosovo’s Constitution, that is inconsistent with the 2015 Constitutional Court decision, or that would threaten Kosovo’s sovereignty, independence, multiethnic character, or democratic institutions. We strictly oppose the creation of any entity resembling Republika Srpska in Bosnia and Herzegovina.

US, 31 January 2023, 

NO ADDITIONAL LAYER OF GOVERNMENT AS IN SRPSKA

25 February 2023, https://www.kosovo-online.com/en/news/politics/lajcak-warns-pristina-less-support-side-rejects-european-proposal-25-1-2023

We are wasting time, Kosovo should not be afraid of the CSM, it will not be a new Republic of Srpska

Lajcak also said that Kosovo should not be afraid of the establishment of the Community of Serb-majority Municipalities, which, as he said, does not mean another Republic of Srpska.

"It is something that will be developed, established and signed only by Kosovo," Lajcak pointed out.

He also stated that Kosovo was wasting time resisting and opposing the establishment of the CSM.

"I am surprised that people are afraid of something that does not exist. Second, you will form it, it will not be imposed. Kosovo has an equal role in the dialogue, as does Serbia. What you signed means that you agree with it. You will not sign anymore something you don't agree with," Lajcak said.

25 February 2023, https://www.kosovo-online.com/en/news/politics/lajcak-warns-pristina-less-support-side-rejects-european-proposal-25-1-2023

LAJCAK: “I think that the international community has made these mistakes in the past in the Balkans, coming up with suggestions that were not tested in other countries. Not all have worked well in the Balkans,” he said.

“Let’s make sure that everything we propose is based on existing models that work well,” Lajcak said without directly referencing Bosnia and Herzegovina and Republika Srpska – something Pristina says is a failure and fears with the proposed establishment of the association in Kosovo.

27 January 2023, 

Kosovo's commitment to creating a Community does not violate its Constitution, nor does it threaten sovereignty, independence, or democratic institutions. We strongly oppose the creation of anything similar to Republika Srpska ethnic community in Bosnia and Herzegovina; The international community does not seek to impose a solution. Instead, we are asking Kosovo to provide its vision for this Community and we are ready to provide expertise and political support to ensure that it functions in the best interest of the citizens of Kosovo.

Chollet and Escobar, 30 January 2023, 

We strictly oppose the creation of any entity resembling Republika Srpska in Bosnia and Herzegovina.

US, 31 January 2023, 

ONLY FUNCTIONAL POWERS FOCUSED ON SERVICES

“I think that Kosovo is multi-ethnic, we are speaking about the Association, and I do not think there is a single mono-ethnic municipality. The Albanians live in the north. We want to apply European models. We do not want to force Kosovo to accept anything that would be against its functionality and its legal system. Why should we do that?” he [Lajcak] said.

24 February 2023, 

The solution also should give guarantees that there is nothing to be afraid of. On the contrary, the solution should improve the communication and cooperation among the Serb-majority municipalities, improve the communication between the Serb community and the government in Pristina, and set clear rules for the communication and cooperation between the Serbian community in Kosovo and the government in Serbia.

11 March 2023,

What would the ASM look like? Municipalities with shared interests, language, and culture could work more effectively together to address common challenges in delivering public services, through economies of scale and sharing of best practices. For example, municipalities could develop a Serbian-language curriculum for local schools across several municipalities, rather than laboring in a vacuum and duplicating efforts. Such cooperation is in line with the 2015 Constitutional Court ruling on the ASM commitment and good governance principles already practiced elsewhere in Europe. …

US, 30 January 2023, 

Municipalities cooperate in the joint management of jurisdictions within the framework of legitimate Kosovo institutions and structures. Allowing certain municipalities to more effectively exercise the powers they already have, would avoid the need for Kosovo citizens to seek services from illegal parallel structures - as many now do - and would preserve the transparency and legality of the structure under and within Kosovo law.

Chollet and Escobar, 30 January 2023,

NO THIRD LAYER, NO EXECUTIVE POWERS

In the context of our discussions on the establishment of the Association/Community of Serbian majority Municipalities, I would like to confirm that it is the EU’s understanding that the Association/Community—in accordance with the first Agreement and Kosovo law—will not constitute a third level of government and will not have executive powers. …

Mogherini Letter, 24 August 2015

What the Community would not be? It would not add a new level of executive and legislative power to the Government of Kosovo. This important principle dates back to Ahtisaari's proposal. Municipalities cooperate in the joint management of jurisdictions within the framework of legitimate Kosovo institutions and structures..

Chollet and Escobar, 30 January 2023, 

NO DISCRIMINATION

It’s also important to note that an Association of Serb-Majority Municipalities would not be monoethnic. These would be Serb-majority municipalities where not only ethnic Serbs live, but also other groups —Albanians, Bosniaks, and others— whose rights must also be ensured and protected. ASM members would be local officials already elected as representatives of all residents in their municipalities. Ensuring that the ASM remains open to all ethnicities and well within the structure of Kosovo’s legal framework were the main concerns of Kosovo’s Constitutional Court, which called for the initial proposal to be adapted, not discarded, and reiterated the obligation to form such an association under the Brussels agreement.

Chollet and Escobar, 30 January 2023,