Perspectives | Dialogue

The PM’s draft agreement with Serbia reflects good intentions but may have dangerous consequences

By - 17.12.2018

An alternative to partition and territorial changes but still dangerous for Kosovo’s sovereignty.

While Kosovo has been celebrating the transformation of the Kosovo Security Force into an army, another very important event has been overshadowed. On December 13, Prime Minister of Kosovo Ramush Haradinaj presented the ‘Quint’ states — the U.S., U.K., Germany, France and Italy — with a draft Comprehensive Agreement between the Republic of Kosovo and the Republic of Serbia.

While the prime minister has continuously maintained that he would not engage in the dialogue with Serbia, he surprised not only the Kosovar audience but also international actors by suddenly presenting a draft agreement for the normalization of relations between Kosovo and Serbia.

The positive aspect is that now there is at least an alternative proposal on the table that attempts to provide a framework for future negotiations between Kosovo and Serbia that does not include border corrections or territorial swaps but asserts the territorial integrity of Kosovo. It is also positive that the prime minister has prepared a document that can serve as a basis for future transparent negotiations, as opposed to the ‘secret’ talks to date between the presidents of Kosovo and Serbia.

The 30-page document is intended to achieve explicit recognition of Kosovo by Serbia as a ‘sovereign and lawfully constituted state’ and to remove obstacles created by Serbia for Kosovo’s membership in international organizations. Kosovo, meanwhile, would acknowledge Serbia’s role to ‘advocate for the rights of the Serb community living in Kosovo.’

The Serb community in Kosovo would be guaranteed human rights and community rights protections, reflecting those already guaranteed under the Kosovo Constitution and the Comprehensive Proposal for a Kosovo Status Settlement (‘The Ahtisaari Plan’). This includes quotas for Serb representatives in state bodies such as the Assembly and the Government, the courts, and in municipal administrations.

While the draft points in the right direction and has positive elements, it has certain shortcomings that may be politically and legally dangerous for Kosovo.

It also continues to maintain a double-majority vote requirement for the Serb community represented in the Assembly to protect their vital interests when the Assembly passes legislation. and endorses the Association of Serb Majority Municipalities, which would be established in accordance with the Kosovo Constitution, the First Agreement of Principles Governing the Normalization of Relations between Kosovo and Serbia from 2013 and the Constitutional Court’s 2015 judgment on the issue.

The draft agreement additionally contains provisions on trade and the removal of trade obstacles, the settlement of debts and succession issues, pensions and savings funds, mutual legal assistance and judicial cooperation for the investigation and prosecution of war crimes and other criminal offenses, missing persons, war reparations, transportation, energy, telecommunications, customs, and integrated border management. It provides for confidence building measures, such as cooperation in academia, the establishment of joint university programs, language courses in Albanian and Serbian in public education institutions in Kosovo, the establishment of a Kosovo-Serbia Business Association and inter-municipal cooperation programs.

The agreements concluded previously between Kosovo and Serbia as part of the technical dialogue and the Brussels Agreement package would be ’internationalized’ under the new draft agreement, with the latter having priority in case of a conflict. The exception is the Agreement on Regional Representation and Cooperation (the ‘footnote’ agreement), which would be abrogated.

The draft agreement foresees the establishment of a Joint Monitoring Commission composed of representatives of ‘guarantors’ of the agreement, i.e. the U.S., U.K., Germany, France, Italy and the EU. The guarantors would monitor and report on the implementation of the agreement and have presences in Kosovo and Serbia. Advancement in the EU integration process would be conditioned upon successful reports by the guarantors.

Once the agreement came into force, the guarantors would facilitate new recognitions for Kosovo and initiate the procedure in the UN Security Council for Kosovo’s admission as a member. The parties would also commit not to block each other’s membership in international organizations. Serbia would also agree to Kosovo’s membership in the International Telecommunications Union, the Universal Postal Union and to be listed in the UN Statistical Division.

Last but not least, the draft provides for dispute settlement between Kosovo and Serbia before the Permanent Court of Arbitration, ratification by both states and the incorporation of the agreement in their domestic legal systems.

In essence, the draft is an attempt to gain explicit recognition by Serbia by ‘internationalizing’ the Ahtisaari Plan and the agreements reached to date with Serbia. In exchange for recognition, Serbia would be given the role of a ‘protector’ of Serb interests in Kosovo subject to international supervision by foreign ‘guarantors,’ which resemble the former International Steering Committee that was established under the Ahtisaari Plan following Kosovo’s declaration of independence.

But while the draft points in the right direction and has positive elements, it has certain shortcomings that may be politically and legally dangerous for Kosovo.

What about democratic accountability?

First of all, there is a flaw in the process. It was not only odd that the prime minister suddenly pulled out the draft agreement while having persistently refused to engage in the dialogue. The truly strange part is that the prime minister did not present this draft first to the people of Kosovo but to the Quint. As prime minister he is accountable to the people of Kosovo and should have presented and discussed this draft with his own people before sharing it with foreigners, regardless how important they are politically.

The extensive and highly elaborate draft also shows that work on the draft must have been going on for a while. This implies that (i) the prime minister was not sincere about his decision to stay away from the dialogue, and (ii) the draft was prepared by foreigners, excluding Kosovar experts, civil society organization representatives and the public.

It’s a pity that you have to ask foreigners for a draft of an agreement that is so vital for the future of our country and our people because you do not get it from your own government. This creates the impression that the draft was prepared by foreigners (there is only an English version in excellent English and evidently not drafted by Kosovars) to be submitted, through the prime minister, back to foreigners, which creates the perception that it is primarily for foreigners and not for Kosovars.

Is Kosovo’s territorial integrity really protected?

As a matter of substance, there are some aspects that require serious consideration. The draft intends to preserve the territorial integrity of Kosovo by referring to respect for the borders of Kosovo that existed before independence. However, this reference is only made in the preamble and there is not a single provision in the draft that determines what Kosovo’s borders were before independence.

In comparison, the Ahtisaari Plan clearly sets out that ‘the territory of Kosovo shall be defined by the frontiers of the Socialist Autonomous Province of Kosovo within the Socialist Federal Republic of Yugoslavia as these frontiers stood on 31 December 1988, except as amended by the border demarcation agreement between the Federal Republic of Yugoslavia and the former Yugoslav Republic of Macedonia on 23 February 2001.’

Why was this provision not included in the draft? Many of the provisions in the draft are taken from the Ahtisaari Plan, especially as regards safeguards for the Kosovo Serb community, but why not the provision on borders? Is there an intention to keep the definition of borders knowingly vague and to introduce border corrections through the backdoor?

Is the ‘Comprehensive Agreement’ too comprehensive?

The draft is simply too long, with too much superfluous language and too many issues to be resolved at once. The draft attempts to deal with issues ranging from high level political issues about Kosovo’s statehood to technical details about joint curricula and language courses.

Linking issues in negotiations is meant to induce states to bring about win-win solutions, as concessions by one side on one issue may trigger concessions by the other side on others. It also mirrors the often naïve belief that an effective resolution of the conflict requires a comprehensive solution for all problems in one document and at the same time.

In the present case this approach can have two adverse consequences for Kosovo: (i) Kosovo may be pressured to make enormous concessions for Serbia’s recognition in areas that may seem politically less relevant, such as transportation or energy, and (ii) negotiating all these issues at the same time will turn the negotiations into an extremely complex undertaking offering leeway to prolong and protract the negotiations as a means for political leaders to stay in power rather than to resolve the conflict.

In comparison, the agreement on normalization of relations between Croatia and Yugoslavia has only four pages and 14 articles. It addresses the most important political issues and defers other issues that required more technical detail to secondary agreements. This approach not only reduces complexity, but it would also be in Kosovo’s interests.

A high-level political agreement that solves issues related to recognition and Kosovo’s membership in international organizations would lock Serbia in. Kosovo would negotiate all subsequent agreements, e.g. on energy or transportation, from a much stronger position as Serbia would have already recognized Kosovo as a state and Kosovo would have to make less concessions.

Asymmetric obligations

The draft is highly asymmetric as most of the obligations are incumbent on Kosovo and only a few on Serbia. The more provisions such an asymmetric agreement has, the higher the possibility of Serbia claiming violations of certain provisions.

This is compounded by the fact that many of these provisions lack precision and clarity, which allows for different interpretations. It would allow Serbia to make use of the dispute settlement provisions before the Permanent Court of Arbitration, exposing Kosovo as breaching the agreement and using this as political leverage to obstruct Kosovo’s integration into the EU.

Too many safeguards

Giving the Serb community legal guarantees in the form of a double-majority for legislation of vital interest made sense under the Ahtisaari Plan, but it makes little sense in this draft. This draft empowers Serbia as a protector of Serb interests by entitling it to take legal action against Kosovo before the Permanent Court of Arbitration, it internationalizes community rights of the Serb community in Kosovo, it establishes the Association of Serb Majority Municipalities in Kosovo, and it empowers foreign states to monitor the implementation of the agreement.

These extensive safeguards did not exist under the Ahtisaari Plan. Why would Kosovo then give the Serb community an additional safeguard at constitutional level that may be used to block central government legislation? While the Serb community could use this mechanism to block a law according to the Constitution, Serbia could use the same issue as a pretext to sue Kosovo internationally before the Permanent Court of Arbitration.

Kosovo back under international supervision

It would be very naïve to believe that Serbia would accept the U.S., U.K., Germany, France, Italy and the EU as the only guarantors of the agreement and as members of the Joint Monitoring Commission. The moment such a proposal is on the table, Serbia will insist upon Russia, and perhaps even China, being included as guarantors.

In fact, the Ahtisaari Plan had already included Russia (‘The ISG shall have the following membership: France, Germany, Italy, Russia, United Kingdom, United States, European Union, European Commission, NATO’) but it refused to be part of the International Steering Committee as the Ahtisaari Plan was not endorsed by the UN Security Council as originally envisaged. Including Russia as a guarantor may either lead to having no effective guarantors at all or, in the worst case, to giving Russia a powerful voice in assessing to what extent Kosovo fulfills its obligations under the agreement.

Why would Kosovo propose such a mechanism when it is foreseeable that it will empower Russia, a strong opponent of Kosovo’s independence?

In addition, there is no time limit for the mandate of the guarantors. In the Ahtisaari Plan, the idea was to have an International Steering Committee for an interim period until Kosovo implemented the provisions of the Ahtisaari Plan. In the present draft, the guarantors would supervise Kosovo endlessly. This is a significant limitation of Kosovo’s sovereignty, worse than under the Ahtisaari Plan, as it would keep Kosovo, which has most of the obligations under this agreement, for an unforeseeable time under international supervision.

Sovereignty with Serbia’s consent?

As already stated, the draft agreement explicitly provides that Serbia agree to Kosovo’s membership in the International Telecommunications Union, the Universal Postal Union and to be listed in the UN Statistical Division. It also contains provisions like ‘parties agree that elections in the northern municipalities are organized by the Republic of Kosovo’s election authorities in accordance with Kosovo election laws and regulations.

If the fundamental provision of the agreement is that Serbia recognizes Kosovo’s independence, why would Kosovo propose provisions that create the perception that Serbia agrees to Kosovo’s membership in the Universal Postal Union. As a sovereign state, Kosovo could join any international organizations, so why mention certain instances in which the ‘parties agree’? And as a sovereign state, of course elections throughout all of Kosovo would be held by Kosovo’s authorities and under Kosovo law.

Sovereignty before the courts?

Why does Kosovo propose the Permanent Court of Arbitration and not the International Court of Justice (ICJ) as the forum for dispute settlement? Establishing the jurisdiction of the ICJ would associate Kosovo with a UN institution, which would legitimize and support its international standing much better than the Permanent Court of Arbitration.

The scope of the jurisdiction of the court should also be reconsidered. The agreement is so broad that almost every aspect of Kosovo’s exercise of sovereignty could be brought before the court.

What about Resolution 1244?

The fundamental flaw of the draft is its failure to address UN Security Council Resolution 1244 (1999) and the need to repeal it as part of the agreement. The draft states that ‘upon entry into force of this agreement, parties and guarantors agree to initiate the procedure for adoption of a United Nations Security Council resolution recognizing this agreement and admitting Kosovo to be a full member of the United Nations.

This provision does not take into account that Russia and China are permanent members of the Security Council who may veto such a resolution even if they are included as guarantors. This is so because this agreement will be very likely binding only on Kosovo and Serbia and not on the guarantors. But even if it were to become binding on them, it would be no safeguard against Russia and China vetoing the agreement as Kosovo could do nothing in legal terms.

The better approach would be to make the entry into force of this agreement conditional on its endorsement by the Security Council and the repeal of Resolution 1244. As this agreement is a requirement for Serbia for further EU integration, it would be in Serbia’s interest to push Russia and China, its allies, to endorse the agreement. If Russia and China failed to do so, they would harm Serbia. Why should Kosovo’s friends pressure Russia and China, when this simple mechanism would create an incentive for Serbia to do it?

This mechanism would also prevent the precarious situation of Kosovo having entered into an internationally legally binding agreement with Serbia but failing to have Resolution 1244 repealed. One should not forget that under the UN Charter member states have the duty to give priority to UN obligations, including Security Council resolutions, over other international agreements.

A dangerous counter-narrative

Given these concerns, why did the prime minister make such a move, by surprise and without prior public consultation? The prime minister obviously wants to construct an alternative to the president’s dangerous narrative of border corrections and territorial swaps. This is to be appreciated.

But the prime minister does so with a draft that is not properly thought through and may have serious negative consequences for Kosovo. By making all these concessions to Serbia in the initial draft, the prime minister already locks Kosovo in and gives Serbia the opportunity to extract even more concessions.

Is it really about the best for Kosovo, or is it just a draft to oppose the president? The worst thing that could happen to Kosovo would be for the negotiations with Serbia to turn into a contest between the prime minister and the president over whose narrative prevails and who scores points over the other. The price would be paid by Kosovo.

Feature image: K2.0