Kosovo aspires to become a member of the EU. It has a Stabilisation and Association Agreement (SAA) with the EU as well as numerous other agreements that should prepare Kosovo for its European path.
The EU is also the facilitator of the dialogue between Kosovo and Serbia that should lead to a comprehensive and legally binding agreement, which the EU insists is a prerequisite for Kosovo’s accession to the bloc.
However, Kosovo has a problem.
A recent judgment by the General Court of the European Union crystallized how the EU sees Kosovo.
Kosovo aspires to join the EU as a sovereign state, but five EU member states — and the EU itself — do not recognize it as such. For the EU, Kosovo is not a state but just a “country,” i.e., a territorial entity that has some international legal personality with which the EU can conclude international agreements, but it is less than a sovereign state.
A recent judgment by the General Court of the European Union crystallized how the EU sees Kosovo, and this might have significant consequences for Kosovo’s European future.
The case came about after Spain filed legal action against the European Commission for allowing Kosovo’s Regulatory Authority of Electronic and Postal Communications to join the Body of European Regulators for Electronic Communications (BEREC) established by the EU. The court had to assess if Kosovo would qualify as a country under an EU regulation that would allow its regulatory body to join BEREC.
In its judgment (in Case T-370/19 of September 23, 2020), the court ruled that one of the constitutive treaties of the EU — the Treaty on the Functioning of the European Union (TFEU) — distinguishes between “countries” and “states.”
According to the court, the distinction between “state” and “country” would allow the EU to deal in its external relations with entities that are not states but still have some international legal personality to enter into international agreements. The international community would not be made up of states alone but would be composed of various other territorial entities other than sovereign states with which the EU would have to maintain some form of external relations. Such territorial entities, which are less than a sovereign state but still have some form of international legal personality, would be covered by the term “country” as used in the TFEU.
The court recalled that the EU has concluded several international agreements with entities other than sovereign states, such as the Palestine Liberation Organization, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, the Government of the Hong Kong Special Administrative Region of the People’s Republic of China, and the Macao Special Administrative Region of the People’s Republic of China.
The EU was only authorized to enter into international agreements with Kosovo because the relevant provisions referred to “country” and not to “state.”
The court then also confirmed that the EU has entered into several international agreements with Kosovo, including an SAA.
However, it also recalled that the EU has never adopted a position on Kosovo as a sovereign state. In contrast, the SAA explicitly provides that it neither constitutes recognition of Kosovo by the EU as an independent state nor affects the individual positions of the EU member states on its status.
Similar safeguards are included in other international agreements between the EU and Kosovo. The EU was only authorized to enter into international agreements with Kosovo because the relevant provisions in the EU treaties referred to “country” and not to “state.”
The court’s ruling confirms what the EU had already stated in its 2012 Feasibility Study on Kosovo’s eligibility for an SAA. The European Commission explained that the conclusion of an SAA would neither constitute recognition of Kosovo by the EU as an independent state, nor would it constitute recognition by individual member states.
For this reason, Kosovo’s SAA with the EU is different from other SAAs as it is an EU-only SAA. It does not include all areas covered by other SAAs as that would have required the EU member states to ratify it, and with five of them not recognizing Kosovo, this was not possible. Kosovo’s SAA with the EU is therefore a light version and adapted to a “country” and not a “state.”
Technical terms have consequences
The EU’s view of Kosovo as a country and not as a sovereign state has significant consequences for Kosovo’s future membership and for the comprehensive and legally binding agreement between Kosovo and Serbia that should normalize relations between the two.
For as long as the EU treats Kosovo just as a country, Kosovo will face serious legal obstacles that might prevent it from joining the EU, and even from initiating its EU accession process. To understand this, we must turn to another treaty, the Treaty on the European Union.
Article 49 of this treaty provides that only states can join the EU. Membership is only open to “European States” and only states may apply to the Council for EU membership. The conditions for admission to the EU are set out in an agreement between the EU and the “applicant State.”
In view of the court’s distinction between “state” and “country,” the latter are evidently excluded from membership in the EU.
For as long as there are EU member states that do not recognize Kosovo as a state, and the EU maintains that Kosovo is just a country and not a state, Kosovo’s path to membership in the EU is barred.
Kosovo must be careful in which legal capacity it signs the agreement with Serbia.
The EU has continuously stressed that a comprehensive and legally binding agreement between Kosovo and Serbia on the normalization of their relations is a prerequisite for Kosovo and Serbia joining the EU. The dialogue it facilitates between Kosovo and Serbia is meant to support the process of negotiating and reaching such an agreement. However, it appears that in this process Serbia is, to the EU, a sovereign state, while Kosovo is a “country,” i.e. a territorial entity less than a sovereign state.
The EU has also never explicitly demanded that Kosovo’s recognition by Serbia must be part of the agreement. This has three consequences:
First, Kosovo and Serbia are not legally equal entities during the negotiation process. Serbia is a sovereign state with all rights and duties under international law, while Kosovo is considered by the EU to be less than that.
Second, Kosovo must be careful in which legal capacity it signs the agreement with Serbia. Unless there is a clear and unequivocal recognition of Kosovo as a sovereign state by Serbia, there will be ambiguity as to what Kosovo is under international law when it signs such an agreement. That would allow for different interpretations that would challenge Kosovo’s claim to be a sovereign state.
Third, even if Kosovo and Serbia reach an agreement, and Serbia recognizes Kosovo as a state, it does not automatically mean that the non-recognizing EU member states would recognize Kosovo, too. If they did not recognize Kosovo, it would continue to be treated by the EU as a country and not a state, and its accession to the EU would remain barred.
It is therefore important that the agreement between Kosovo and Serbia includes recognition of Kosovo by the EU and the non-recognizing member states as otherwise the agreement will not achieve the desired goal of enabling Kosovo’s membership of the EU.
Whenever Kosovo has disregarded the legal implications of its actions in the international arena it has paid a high political price.
For all these reasons, it is necessary for the comprehensive and legally binding agreement between Kosovo and Serbia to be endorsed by the EU and non-recognizing member states as a “condition precedent” for its entry into force.
Without this, it would just be doing Serbia a favor by enabling it to join the EU while Kosovo’s legal status would remain unclear and subject to controversy.
Unfortunately, little attention has been paid to the complex legal dimensions of an agreement with Serbia, and there has been an inclination to ridicule the legal aspects as unnecessary legalism and largely irrelevant. However, whenever Kosovo has disregarded the legal implications of its actions in the international arena it has paid a high political price.
The EU-facilitated dialogue between Kosovo and Serbia has so far avoided explicitly addressing the question of recognition and has instead focused on certain areas of practical importance at a rather technical level.
The EU and the U.S. expect Kosovo to engage in the dialogue, and this will be a major challenge for the new government. But it would be advisable for the new government to address the question of recognition immediately and to avoid getting entangled in purely technical issues. If the dialogue is to have any real meaning, it should address the core problem that underlies relations between Kosovo and Serbia, and between Kosovo and the EU — and this is the question of recognition.
Kosovo should also engage in a separate dialogue with the EU on how to ensure that the non-recognizing member states will extend recognition to Kosovo as part of a comprehensive and legally binding agreement between Kosovo and Serbia. Kosovo should make it clear that an agreement with Serbia without assurances of recognition by the EU and non-recognizing member states is not what Kosovo would accept.
These two different streams of dialogue — with Serbia and with the EU — will require Kosovo to mobilize all its diplomatic capacities and ensure that its foreign policy on dialogue is clear and coordinated.
Kosovo must avoid the mistakes of believing that an agreement with Serbia alone would suffice for it to be recognized as a state by those states that have not recognized it so far, and that any agreement would automatically allow Kosovo to join the EU and the UN.
When Kosovo declared independence in 2008 and unilaterally accepted the Comprehensive Proposal for the Kosovo Status Settlement, it believed that it would garner the recognition of most states. This expectation proved an illusion.
It should not make the same mistake twice.
Feature image: Arrita Katona / K2.0.