Perspectives | EU

Europe’s Sword of Damocles has the potential to change everything

By - 28.08.2018

One simple clause hangs constantly over Kosovo’s head.

The Sword of Damocles refers to an ancient Greek fable where a single change of circumstance completely changes the outcome of the story. In social sciences we tend to allude to it as a reference point for impending doom, where peril is easy to detect but hard to avoid.

It’s this second association that this article will try to impress on to you, dear readers. Because if the analysis here is deemed correct, the European Union holds such a sword over the heads of Kosovo’s leadership which can single handedly trigger a rewinding of the Kosovo-EU relationship and cause what can only be construed as a disaster for Kosovo’s evolution towards becoming a ‘European state.’

You may ask yourselves, what could be so powerful to do such a thing, and is it intentional? But whereas the first part of the question is easily answered, the second one I’ll leave to you to judge for yourselves. I’ll only present the facts as I see them.

The first part of the question can be answered just by uttering one short acronym: SAA — the Stabilisation and Association Agreement. The first (and primary) contractual agreement between Kosovo and the EU is the basis of cooperation between the two parties, and a bedrock of continued engagement between them. It is the one thing that concretely connects Kosovo to the European Union (outside of bilateral state politics within it) and, as of today, is the primary focus of Kosovo’s EU integration process.

It is a complicated document with a complicated history. It was signed in Strasbourg on October 27, 2015 after a long series of negotiations between the two sides, and later entered into force on April 1, 2016, when it was ratified fully. You may by now be sold on the importance of the SAA, but you may still ask yourselves: Where is this sword thing I’ve been talking about? Well, it can be found within the text of the agreement, where I’ll begin immediately.  

Every single international accord by its nature has a specific mechanism within it to resolve potential disputes, because it’s common knowledge that agreements (even the best ones) can result in problems within their implementation. As an international agreement between two parties privy to doing ‘business’ on the international stage, the SAA possesses the same type of mechanism for dispute resolution, which are outlined in Articles 136 (primarily in Paragraphs 3 and 4) and 137.

How can there be a whole dispute resolution mechanism that is not applicable to two specific articles within an agreement that has more than 270?

In those articles it lays out how disputes between the parties are resolved, and what procedures should be taken to settle any issues that may potentially arise. It’s a standard dispute resolution mechanism, as seen in countless other international agreements, where a bilateral group (here called the ‘SAC’ – Stabilisation and Association Council) is formed by adding even numbers of both parties and given the power to resolve contests within the scope of the agreement.

If ‘that was that,’ so to speak, this piece would not have been written, but reading further into Article 136 (specifically Paragraph 6) reveals something weird and fascinating at the same time. Paragraph 6 of the article turns everything completely on its head when it states that: “Paragraphs 3 and 4 of this Article (136) shall not apply to Articles 5 and 13.

What!? How can there be a whole dispute resolution mechanism that is not applicable to two specific articles within an agreement that has more than 270? And, what the hell are Articles 5 and 13?

Here we start to see the Sword of Damocles emerging, as Article 5 (the key article in this special procedure) states the following:

“Kosovo commits to continued engagement towards a visible and sustainable improvement in relations with Serbia and to effective cooperation with the Common Security and Defence Policy mission while in place, as further defined in Article 13. These commitments constitute essential principles of this Agreement and shall underpin the development of relations and cooperation between the Parties. In case of the non-compliance by Kosovo with these commitments, the EU may take measures it deems appropriate, including suspending all or part of this Agreement.”   

Even the simplest of readings of this fascinating Article shows us clearly how the EU views its engagement with Kosovo. It clearly shows that for the EU, the ‘essential principle’ that underpins the functional basis of the SAA is the improvement of relations with Serbia and that the EU reserves the right to unilaterally ‘take all measures it deems appropriate’ to make sure Kosovo complies, even if those measures are maximal in its nature — like suspending the whole SAA, for example.

Everything in this special procedure is done unilaterally: the EU concludes that Article 5 is somehow in breach and simply moves forward with applying its consequences without any need for further discussions, or any bilateral processes whatsoever.

The scope of this special procedure goes even further within Article 13 (specifically Paragraphs 2 and 3) where the EU specifies what may constitute a ‘breach’ of Article 5. They argue that Kosovo is in breach of Article 5 firstly when: “a) Kosovo does not implement in ‘good faith’ agreements reached with Serbia.” This seems like a dangerous idea for the Kosovar political scene as does the second potential breach: “b) Kosovo stops resolving through dialogue and a spirit of compromise other outstanding issues.” Which seems to suggest, quite clearly, that Kosovo cannot unilaterally leave the dialogue without heavy repercussions to its relations with the EU.

However my personal favorite is the third potential breach: “c) That the Kosovo-Serbia dispute must lead to a ‘legally binding agreement’ and that Kosovo cannot [if it wants the SAA to remain in power] block such an attempt from continuing.” By the way, everything in this special procedure is done unilaterally: the EU concludes that Article 5 is somehow breached and simply moves forward with applying its consequences without any need for further discussions, or any bilateral processes whatsoever.

The outlines of what constitutes a breach of Article 5 stated in Article 13 — of which there are also a couple more but more tame than these three — prove to us that Article 5 has the potency to completely alter the fabric of the Kosovo-Serbia dynamic within the dialogue, as the full power of the EU stands firmly on top of Kosovo’s decision-making and can legally pressurize Kosovo toward a specific path within the dialogue. They also do this without the danger of being accused of state influence as the agreement was signed up to by Kosovo as well.

This is the Sword of Damocles I’ve been talking about and it unconditionally proves that for the EU, the path of Kosovo’s EU integration goes hand in hand with the dialogue process with Serbia. It also shows that Kosovo cannot remain unscathed from walking out of the dialogue — or even altering their position, if that alteration is considered unacceptable by the EU.

The SAA and its benefits are far too great for Kosovo to risk. It is the final pressure point that the EU can use to put an enormous burden on Kosovo to comply with something that (technically) the SAA is not an agreement on — as it is an economic and co-operational agreement with the EU exclusively, not with Serbia!  

You could easily argue that Kosovo has staked its political future as a European state by working toward this specific agreement, and the EU has the power to unilaterally ‘do what it wants’ if Kosovo does not comply with the EU’s way of thinking.

It is not just a suspension of the agreement that is a possibility. Article 5 in and of itself is vaguely formulated and as such has no clear limit in its scope, so the EU can practically do almost anything within their power to (legally) put unlimited pressure on Kosovo in case they determine a breach of it. They could block investments and access to EU programs (as these are contingent to the continuation of the SAA), as well as create barriers to new investments from member states, or even block Kosovo’s visa liberalization process with its new suspension mechanism introduced in 2017.

But it is the implicit risks that are just as worrying. As the SAA is the basis of Kosovo’s EU perspective, any alteration to it means a direct impact on Kosovo’s integration path. It’s not just the money and the benefits that would be in jeopardy — Kosovo’s further political development is dependent greatly on this agreement, and almost all of its political evolution in the last couple of years has been focused on this single process.

You could easily argue that Kosovo has staked its political future as a European state by working toward this specific agreement, and the EU has the power to unilaterally ‘do what it wants’ if Kosovo does not comply with the EU’s way of thinking when it comes to the dialogue process with Serbia.

If this does not meet the textbook definition of the Sword of Damocles principle, I cannot think of anything else that does! The EU is ‘dangling’ this powerful precept over Kosovo’s head as a permanent danger, and ultimate pressure point that can be used if they ever think they need it — again, completely unilaterally!

Why were these conditions put in the agreement? How could Kosovo’s negotiating team comply with such a request? Did everybody within the negotiation process understand this article the same way? These are a few questions I’ve asked myself countless times and they are some of the questions I’ve put toward the European Union representatives through EU direct so that they could clarify my inquiries. But despite having a policy of answering within three days, it’s now been more than 20 days with them being silent on the matter.

So, I’ll continue waiting for their response (if it ever comes) and I’d love to understand how such an article can exist within a bilateral agreement. Why did everyone within that negotiation process agree that something like Article 5 was so important to Kosovo-EU relations as to make it the bedrock of the entire agreement and Kosovo’s integration path as a whole?!

Also, as a closing point: How come nobody ever mentions it publicly? It seems a rather important and immensely influential point for our political discourse, especially now. Nevertheless, it is fascinating from any point you deem fit to see it, even though it creates a dangerous precedent for further EU-Kosovo relations. Article 5 is a unique clause, within a unique agreement, between unique actors within the international relations stage. What else should we expect?

Feature image: Besnik Bajrami / K2.0.

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