Serbia and Kosovo – Time to solve the “Gordian Knot”

Ognjen Gogic
Political analyst based in Belgrade

Transferring Kosovo case form the UN to the EU

After Kosovo unilaterally declared independence from Serbia in February 2008, Serbian Government announced its readiness to employ all available political, diplomatic and legal means in order to protect its sovereignty and territorial integrity. In order to make more plausible its argument that Kosovo’s act was illegal, Serbia decided to transfer the issue to the International Court of Justice, anticipating that a favorable verdict would discourage other states from recognizing Kosovo’s independence. Accordingly, in October 2008, upon Serbia’s request, the United Nations General Assembly voted to request the ICJ advisory opinion on whether Kosovo’s declaration of independence was in breach of the international law.

The 2010 ICJ ruling turned out to be Serbia’s “own goal”. The Court concluded that the declaration did not violate general international law which contains no “prohibition on declarations of independence”. Serbia’s diplomatic blow, however, served as leverage to the EU. Building on Serbia’s diplomatic defeat, Brussels took advantage of Serbia’s aspiration to join the EU to persuade it to return to a negotiation table. Therefore, following the ICJ decision, in November 2010 the GA passed Resolution 64/298, jointly submitted by Serbia and the EU, which called for EU-facilitated negotiation between Belgrade and Pristina.

The goal of the EU-mediated talks launched in March 2011 was to “remove obstacles that have a negative impact on people’s daily lives, to improve cooperation, and to achieve progress on the path to Europe”. The process presented the first negotiations between Belgrade and Pristina since Kosovo declared independence. It also marked a huge shift in Belgrade’s approach towards Kosovo since it meant that Serbia agreed to transfer the issue from the UN to the EU. The dialogue was labeled as “technical” as it was focused on solving practical problems. Nevertheless, its goal was to gradually build confidence between parties in order to enable them to eventually address more challenging political issues.

Until February 2012 the parties signed agreements on customs seal, mutual recognition of university diplomas, freedom of movement, representation of Kosovo at the regional level, land books and civil records, and integrated border management (IBM). As a result, Serbia agreed to recognize vehicle registration plates and personal documents issued by Kosovo authorities, as well as customs stamps with words “Customs of Kosovo”. In December 2011 the parties agreed to exchange liaison officers. Agreement on regional cooperation was concluded in February 2012. It enabled Kosovo to participate at regional forums using designation Kosovo*, with footnote applied to the asterisk stating “this designation is without prejudice to positions on status, and is in line with UNSC 1244 and the ICJ Opinion on the Kosovo Declaration of Independence”.

To some extent paradoxically, the dialogue was elevated from a “technical” to a “political” after 2012 Serbian parliamentary elections which brought to power nationalistic parties, which also ruled the country in 1998/99 when war in Kosovo broke out. In spite of harsh rhetoric during election campaign and denunciation of technical negotiations as a betrayal of Serbian interest, after assumed power those parties acted more pragmatically. Instead of stopping the process, new Government raised the dialogue to a political level. This change was described as a “Copernican turn”.

The normalization talks resumed in October 2012 bringing together for the first time Prime Ministers of Serbia and Kosovo, Mr Ivica Dacic and Mr Hasim Taci. That signaled a discontinuity with previous unwillingness of Serbian officials to have any direct contacts with representatives of Kosovo authorities. What’s more, in February 2013 presidents of Serbia and Kosovo, Mr Tomislav Nikolic and Ms Atifete Jahjaga, also met in Brussels for the first time. The dialogue was first mediated by the EU High Representative for Foreign Affairs and Security Policy Ms Catherine Ashton and later by Ms Federica Mogherini who succeeded her in the office.

The talks between two PMs resulted in a 15-point agreement on normalization of relations. “First Agreement of Principles Governing the Normalization of Relations” was concluded in Brussels in April 2013. The document was rather strange and did not resemble a typical international agreement. It was not signed by the parties, nor did it specify how the parties to the agreement were. The Assembly of Kosovo ratified the agreement, treating it as an international agreement, while Serbian parliament did not adopt a law for its ratification. In spite of all of accompanying confusion, the agreement was hailed as a historic milestone in relations between Serbia and Kosovo and, therefore, allowed both to advance on their paths towards the EU.

The purpose of the document was to offer solutions to two related goals. It was supposed to facilitate the integrating of Northern municipalities under Serbian control into Kosovo’s administrative system, while providing substantive guarantees for Serbian population in turn. According to the agreement, Serbia was expected to dismantle its “parallel structures” in the North which undermined Kosovo’s sovereignty, as well as to consent to integration of its police and judiciary into Kosovo legal system. On the other hand, abolishment of Serb-controlled institutions was supposed to be compensated by creation of Association of Serb-majority Municipalities. Furthermore, both parties committed themselves not to block or encourage other to block, the other side’s progress in the respective EU paths.

Since European integration process of Serbia and Kosovo became directly dependant on their commitment to the success of the dialogue, after concluding the agreement parties continued to meet regularly in order to discuss its implementation. However, the normalization process experienced slowdown on several occasions. It was interrupted by elections and government changes in Kosovo and Serbia, but it was also affected by substantive disagreements on the matter. Creation of Association of Serbian Municipalities was the most controversial aspect of the agreement. Belgrade and Pristina interpreted its role in completely different ways. While Serbia envisioned it as an autonomous body which would represent the interests of Serbs from, Pristina feared that it might resemble Republic of Srpska, the Serb-entity in Bosnia, thus making Kosovo a dysfunctional state.

In spite of many setbacks, in August 2015 Belgrade and Pristina managed to sign another series of agreements, including agreements on creation of Association of Serbian Municipalities and telecommunications which allowed Kosovo to obtain its own international dialing code.

German-EU conditionality – Kosovo as the main precondition for the EU membership
When Kosovo declared independence, all major political parties in Serbia swore to never recognize it. Over the years, Serbia’s approach to solving Kosovo issue became less resolute. The main reason behind that change referred to Serbia’s unwillingness to give up its aspiration for EU membership because of Kosovo.

Since Serbia embarked on the EU path in 2000, the main political condition pertained to the prosecution of war criminal suspects. Following the extradition of major indictee Ratko Mladic to the war crime Tribunal in Hague in July 2011, it seemed as if political impediments for Serbia’s European integration were finally cleared. Nonetheless, in August 2011 German Chancellor Ms Angela Merkel visited Belgrade in order to make sure that Serbian politicians were under no illusion that political conditionality for EU accession was over. Emerging from the eurozone crisis as an undisputed leader of the EU, Germany felt confident to act autonomously with regards to Kosovo issue. During her visit to Belgrade, Chancellor Merkel met with then Serbian president Mr Boris Tadic and made him clear that Serbia would have to dismantle its “parallel structures” in the Northern Kosovo if it wanted to make progress towards the EU.

Ms Merkel took Serbian politicians by surprise with her unambiguous message. Her demands meant that Serbia would have to completely withdraw institutionally from Kosovo if it wanted to achieve candidate status for the EU membership. Moreover, the Chancellor Merkel’s visit to Belgrade demonstrated a new approach of the EU according to which Serbia’s accession became highly conditioned on the visible improvements regarding normalization of relations with Kosovo. It soon became clear that Serbia had no hopes of making progress in its integration without making concessions with regards to Kosovo. Somewise, it looked as new conditions for Serbia were being presented as soon as the previous ones were fulfilled.

In October 2011 European Commission recommended Serbia to be awarded the candidate status for the EU membership. Nevertheless, in December 2011 European Council decided not to grant Serbia the candidate status. In spite of the fact that all member states were in favor of granting Serbia the candidate status, Germany decided to block that decision until further progress with Kosovo was achieved. Accordingly, Serbia received candidate status in March 2012 after it signed the agreement on regional representation with Kosovo. Likewise, only after Brussels Agreement was concluded, in June 2013 the European Council decided to open accession talks with Serbia. Similar pattern reoccurred in December 2015 when Council decided to open the first two negotiation chapters with Serbia after it previously signed agreements with Kosovo in August 2015.

Germany’s leading role in supervising the normalization process with Kosovo was reinforced in September 2012 when the delegation of Bundestag parliamentarians from the ruling CDU visited Serbia. The German MPs came to Belgrade in order to present their 7 conditions for Serbia’s EU accession. One of those conditions referred to Serbia’s obligation to sign a legally-binding agreement on good-neighborly relations with Kosovo before joining the EU. Since Germany did not want to import another conflict into the EU (no “new Cyprus”), their message was that Serbia would have to fully normalize relations with Kosovo if it wanted to enter the EU. What the normalization really meant according to German MPs remained rather vague, although they clarified that it would not have to amount to official recognition of Kosovo.

What’s in sight – a new deadlock or a final solution?
The Brussels dialogue entered its sixth year without achieving any substantial contribution to the real normalization of relations between Serbia and Kosovo. The truth of the matter is that the goal of Serbia was never to really normalize its relations with Kosovo. Instead, Serbia showed readiness to make concessions regarding Kosovo in exchange for progress on its EU. Unsurprisingly, the process of negotiation was rather non-transparent with governments of Serbia and Kosovo both misinforming their population on what was actually agreed. This turned out to be as a main impediment for successfully implementation of the agreements. Consequently, many of the agreements remained unfulfilled.

The talks did not contribute to building confidence between people. Despite the fact that Serbia agreed to encourage Serbs to participate at elections and to get engaged in political life of Kosovo, Serbian parallel structures remained active in the North and Serbs have not become fully integrated into Kosovo’s system yet. The Association of Serbian Municipality has not established due to the institutional crisis in Pristina and strong resistance from the opposition. Likewise, Kosovo had remained without an international dialing code despite of the agreement on telecommunications.

Kosovo entered dialogue with Belgrade hoping that it would be beneficial to its efforts to strengthen its sovereignty and achieve further internationally recognition. On the contrary, Belgrade’s approach was seen as a rather dubious. The preamble of Serbian Constitution stipulates that Kosovo is an inalienable part of the territory of Serbia and Serbian politicians still categorically refuse to officially recognize its independence. In line with its non-recognition policy, Serbia obstructed initiatives of Kosovo government to join the UN and its agencies such as UNESCO. Nevertheless, Belgrade agreed to “dismantle” its institutions in order to allow Kosovo to circle its statehood on its entire territory. Furthermore, Kosovo is no longer a predominant issue in domestic political debates, although majority of Serbian citizens would oppose recognizing Kosovo as an independent country.

At this point it seems that process of normalization came to another dead end since approach of “constructive ambiguity” exhausted its potential to yield results. Therefore, the meaningful continuation of process would arguably be impossible without tackling the status issues.

The shortcoming of not calling things by their right name became especially evident in September and October 2016 when the issue of property came to fore. Namely, implementation of the agreement on telecommunications triggered the dispute whether property on Kosovo belonged to Belgrade or Pristina. At the same time, the Assembly of Kosovo voted to put Trepca mining complex under government control. Consequently, Serbia now fears that it would be deprived of all of its property rights and disabled to recover its ownership over Gazivode hydroelectric power plant and other energy sources and state-owned enterprises.

Due to the fact that 5 out of 28 EU member states do not recognize Kosovo independence, Brussels has not been able to develop common position nor to explicitly require Serbia to recognize Kosovo in order to join the EU. In order to break the deadlock, Germany presented conditions for Serbia’s accession which implied that Serbia would have to stop obstructing Kosovo from joining the UN and becoming a full-fledged member of international community. In that respect, the German condition regarding legally-binding agreement with Kosovo was reminiscent to Basic Treaty which was signed by West and Eastern Germany in 1972 in order to enable both states to join the UN.

Dispute over property issues showed that it will no longer be possible to continue the process without addressing the most controversial issues. It can, therefore, be expected that in the near future Serbia would be conditioned to make further concession regarding Kosovo. Serbian official already announced that they were faced with “sever ultimatum” to renounce Serbia’s property in Kosovo. Moreover, changes of Serbian Constitution are scheduled for 2017. Taking all this into account, it remains to be seen whether Serbia would be ready to make concessions regarding its property in Kosovo and to remove the Preamble from its Constitution.

In the foreseeable future, EU accession of Serbia would entail at least de facto acceptance of Kosovo’s independence. Serbia might be able to avoid to officially recognize the independence of Kosovo in case it manages to find the right formula. In any case, neither of the parties (Belgrade, Pristina and Brussels) would be able to delay facing the moment of truth for much longer.

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