OpEd

What went wrong in the Brussels dialogue

This expertise analyzes the reasons for the current deadlock of Brussels negotiations for the normalization of relations between the Republic of Kosovo and the Republic of Serbia. It proves that the dialogue is being led by the current EU Facilitator in an extremely unbalanced way, as much as it endangers the continuation of the process. By accommodating Serbia's refusal to sign the Brussels Basic Agreement of February 27, 2023, the process seems to focus only on issues that the Republic of Serbia wants to discuss and which require sacrifices only from the Republic of Kosovo. The whole process, including the German-French initiative for a basic agreement, seems to have been transformed into a machine to pressure Kosovo to accept Serbia's demands, completely ignoring the alleged balance of the Brussels Basic Agreement. This fact becomes even more serious with the loss of trust in EU intervention and its wrong, unbalanced and sometimes unprofessional approach during the process.

The analysis was carried out by prof. Dr. Marc Weller. The author is Professor of International Law and International Constitutional Studies at the University of Cambridge. He has advised in dozens of international negotiations and constitutional processes. He is the author, editor and co-editor of over 25 books in this field. He is the co-editor of International Law and Peace-settlements (Cambridge University Press, 2021) and has served as a temporary adviser to the governments of Kosovo since 1992, starting with President Ibrahim Rugova. The views expressed here are his own and cannot be attributed to any government or institution.

This document addresses these points as follows:

I. The purpose of the Brussels dialogue

II. Shaping the dialogue only according to the interests of Serbia

III. The dubious legal quality of the agreements imposed on Kosovo now

IV. Franco-German initiative from 2022

V. Serbia's refusal to sign the Basic Agreement and the Annex

VI. Acceptance of Serbia's request not to be subject to obligations

VII. Disturbance of the balance of interests in the alleged agreement

VIII. Material breach

IX. Fair and unbalanced process: The example of Ohrid

X. Implementation of Article 7 only, and even partially

XI. Purpose of the 2013 Agreement

XII. Unbalanced methodology

XIII. The issue of the management committee and its proposal

XIV. Partial view of Article 7: The issue of parallel structures

XV. Facilitator as King

XVI. Denial of own commitments by the Facilitator himself

XVII. General approach

XVIII. The way forward?

12 June 2023

SUMMARY:

  • There is no relief without a neutral approach towards the parties. His overall goal is to push Serbia towards Europe, especially given the crisis caused by the aggression of the Russian Federation against Ukraine. Therefore, the focus is on attracting acceptance from the Republic of Serbia. This means ignoring the interests and demands of the Republic of Kosovo, which it is believed could force Kosovo to accept any outcome that would be acceptable to Serbia.
  • For example, the Annex to the Basic Agreement underwent fundamental changes to the detriment of Kosovo just hours before the Ohrid negotiations began in March, in an apparent attempt to accommodate Serbia. Despite all these major concessions, Serbia disrupted the process, refusing to sign any document, regardless of its content. However, even then, the EU decided to move on almost as soon as the agreement was signed by the parties.
  • This means that Kosovo lost the key benefit it expected from the Brussels Basic Agreement: Serbia's clear acceptance of mutual relations developed on the basis of UN principles, including the non-use of force, sovereign equality and integrity territorial, in a legal, mandatory form. This change in the balance of obligations expected from the Basic Agreement was not addressed in any way.
  • While insisting that the Basic Agreement was binding on both parties, the Facilitator nevertheless acted in accordance with Belgrade's claim that it could choose which obligations arising from the Agreement, if any, to implement or no. This is the antithesis of a contractual relationship that requires equal application of all provisions based on a balance of interests between the parties.
  • The process now focuses exclusively on addressing the issue of the implementation of Article 7 of the Basic Agreement, which deals with the cooperation of municipalities with a Serbian majority in the self-management of service provision. This is the issue that interests Serbia and the issue for which Kosovo is asked to give everything, unilaterally and in advance.
  • In fact, the proposed format for these talks only addresses one aspect of Article 7 and ignores the one that is of interest to Kosovo, which is about supporting parallel governance structures from Serbia. It also ignores the framing of the issue in Article 7.
  • The Facilitator has withdrawn from its strong assurances, formally stated and several times repeated by the EU, about the criteria for the mechanism to implement Article 7. In another context, this would be a breach of trust.
  • The facilitator claims that he has absolute powers to shape the outcome of these talks, regardless of whether Kosovo ultimately agrees or not. This is unacceptable for a matter that is the sovereign jurisdiction of Kosovo.
  • There is no strong implementation plan to balance the concessions expected from the Kosovar side with counterbalancing concessions from the other negotiating party. It is required that only Kosovo fulfills obligations. The initial violations of the Basic Agreement by Serbia were left unaddressed by the Facilitator.
  • There is no prospect of progressing towards full, final and comprehensive normalisation, with central recognition in a legally binding form as required in Article 6 of the Framework Agreement.

I. The purpose of the Brussels dialogue

Contrary to popular myth, the Republic of Kosovo did not gain its independence unilaterally. Participated fully and constructively in the final status process led by the former President of Finland, Marrti Ahtisaari, on behalf of the United Nations. The Republic of Serbia refused to sign the comprehensive agreement. Kosovo, however, implemented all the obligations contained in the instrument that was negotiated, even without receiving recognition of its status from Serbia. These included even the most extensive provisions, in Europe and indeed throughout the world, for the protection and promotion of the rights of their own ethnic communities.

There is no more space to negotiate the terms of Kosovo's independence once again. The Republic of Kosovo has made all the concessions that were declared necessary by the organized international community. The fact that the Republic of Serbia refused to recognize this result, then and now, refusing to sign the resulting agreement, does not open the door for concessions to be negotiated. This is not the goal nor the focus of the current negotiations on the normalization of relations.

The Republic of Kosovo is sure of its status as a sovereign state and cannot be expected to negotiate additional conditions for the status. The assumption that Kosovo should buy recognition from the Republic of Serbia with more concessions, including an agreement for an unwanted autonomy for the north of Kosovo, even in a round of negotiations, is therefore wrong. The focus of normalization is the development of cooperation and good neighborly relations between the parties, not the issue of the existence of one of the parties.

It cannot be expected that the Republic of Kosovo will offer more and more, as long as it understands that the Republic of Serbia does not have the will, after all, to recognize its status and have real normalization, as long as it accumulates concessions that already are done, waiting for a real breakthrough. Kosovo has already ensured all the rights and mechanisms that can be given to the ethnic communities that make up the minority. This includes broad and even expanded powers for its ethnic Serb citizens, especially in the municipalities where they form the majority. The Republic of Serbia received these benefits through the Ahtisaari process, without accepting its respective obligations.

The Republic of Serbia is now implementing this trick again. It negotiated the Basic Agreement of February 27 and won important concessions in the process. However, he did not sign the Agreement and says that he has no obligation in relation to Kosovo. Therefore, only Kosovo is required to fulfill the obligations contained in the Agreement and its Government was under great pressure to fulfill these. The other side of the Agreement, the lack of at least one meaningful step towards normalization on the part of Serbia, is being completely ignored.

Full and comprehensive normalization is in fact the official mandate of the Brussels Process. The Brussels dialogue started with the invitation of the UN General Assembly, expressed in Resolution 64/298 (2910). The Resolution recognized the Opinion of the ICJ which had determined that the declaration of Kosovo's independence was in accordance with international law. He welcomed the readiness of the EU to facilitate a dialogue process between the parties that would promote cooperation, and that would mark progress on the path to the EU, as well as that would improve people's living conditions.

The EU implemented this request in the context of talks with the Republic of Kosovo and the Republic of Serbia regarding EU membership. The EU has determined that accession to the EU requires full, final and comprehensive normalization between the parties in a legally binding form. It is impossible for the EU to deal with the application for membership of a state that has territorial claims against another state in its own Constitution and policy and that remains determined to absorb its neighbor's territory. Failure to achieve this full normalization would negate the goal set by the UN General Assembly to achieve peace, security and stability in the region. Therefore, the dialogue should achieve the legal recognition of the existence and status of Kosovo as a state.

The process started with technical talks in 2011 and moved to high-level dialogue, initially facilitated by the High Representative for Foreign Affairs and Security Policy, Baroness Catherine Ashton. Starting with the first Agreement on Principles Governing the Normalization of Reports (Brussels Agreement) of 2013, a number of technical agreements have been concluded by the parties. However, the overall goal of achieving comprehensive normalization has been sidelined during the process, given the Republic of Serbia's predilection for engaging with the main source of tension between the parties and for the wider region — the refusal to move forward with recognition of the legal identity of the Republic of Kosovo, as well as to address the continuous intervention by the Republic of Serbia in the internal affairs of Kosovo in the form of its support to the parallel structures of governance maintained by Serbia in the north of Kosovo.

The dialogue was near death for a couple of years, until the EU appointed, on April 2, 2020, Mr. Miroslav Lajcak as EU special representative for Belgrade-Pristina dialogue and other regional issues of the Western Balkans (PSBE). The mandate of the PSBE was defined as follows:

As for the essence of the mandate, to facilitate, on behalf of the high representative, the Belgrade-Pristina dialogue, in close coordination with the member states, to work on the comprehensive normalization of relations between Serbia and Kosovo through the conclusion of a legally binding agreement mandatory that addresses all outstanding issues between the parties in accordance with international law and contributes to regional stability, as well as to monitor and assist as necessary the work of the parties for the implementation of preliminary agreements within the framework of the EU-facilitated dialogue ; [Council Decision (CFSP) 2020/489, April 2, 2020.]

This mandate, therefore, is focused on achieving comprehensive normalization through a legally binding agreement that addresses all outstanding issues. The European Parliament has officially and continuously confirmed that the parties and the dialogue must "ensure, without delay, a comprehensive and legally binding agreement for the normalization of relations based on the principles of mutual recognition, and recently it has done so in the decision of dated May 10, 2023". Declarations of this type should shape the way the PSEU mandate is exercised. This request has been officially expressed by the individual states that support the dialogue. American President Biden, in his letters sent to the parties, has emphasized the need to reach a comprehensive agreement on normalization "with mutual recognition at the center".

II. Shaping the dialogue only according to the interests of Serbia

Despite the clear focus of the dialogue and the mandate of the PSBE, Mr. Lajcak, the Brussels process has mostly ignored this general goal. Instead, there have been efforts to revive talks and technical agreements. The Republic of Kosovo has repeated several times that many, if not the vast majority of these agreements, which are more than 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 been focused on a single key topic of interest to Serbia. This is the implementation of the Brussels Agreement from 2013, and this only concerns the Association of Municipalities with a Serbian Majority (AKSHS) that is proposed in it.

In fact, this agreement contains some elements that Serbia has not implemented. Instead of taking a balanced view of the implementation of all the agreements reached in the Brussels process, the demand related to the AKSHS has been allowed to become the big topic that now dominates the current negotiations. Thus, the Facilitator and his international supporters have framed the parties in what appears to have become an insoluble conundrum.

However, instead of seeking to resolve the Gordian knot with innovative proposals in negotiations, all international attention is focused on forcing the Republic of Kosovo to accept some special demands at this point. Such one-sided pressure is not believed to be able to impress a government that came to power with a strong popular mandate to protect the sovereignty and self-determination of Kosovo.

III. The dubious legal quality of the agreements imposed on Kosovo now

Kosovo officially and fully ratified the First Agreement of 2013, which opened the AKSHS issue, as an international treaty. However, the Republic of Serbia has not done this. In fact, he may not even have signed it. It seems that he will have communicated the acceptance indirectly to Brussels and not to the Republic of Kosovo, but the situation has not been clarified by the EU. It is clear that there were no signatures from both parties on either document, nor did the Republic of Serbia ratify the agreement as a legally binding document.

The Republic of Kosovo is of course meticulous in terms of the agreements it has officially accepted and ratified, as long as the other party has done the same and as long as the treaty is in force. Under these conditions, the legal quality of this commitment is questioned. At least, there is a pronounced imbalance in relation to the legal quality, considering that Kosovo has ratified it, while Serbia has refrained from this act.

The same imbalance exists in relation to implementation. For an unknown reason, it is only the behavior of Kosovo that is reviewed, without a single reference to the failures of the Republic of Serbia to fulfill its part of the obligation, if there was a legally binding agreement.

It is even more controversial that the PSEU, with its demands and proposals, has put forward a second text on the status of legally binding treaties. This text is titled: "Association/Community of Municipalities with a Serbian Majority in Kosovo — General Principles / Main Elements of 2015". The text provides additional details on the implementation of the proposed AKSHS.

However, after addressing its own Constitutional Court, the Republic of Kosovo could not ratify this text as a binding agreement. The Constitutional Court had decided that the text was only partially in accordance with the constitutional order of Kosovo and, consequently, could not be accepted in its current form. Therefore, the Republic of Kosovo could not confirm that this, for it, is a legally binding document.

Considering the previous practice of the Republic of Kosovo to ratify the First Agreement, it should have been clear that the Second Agreement on the same issue would require such ratification in order to enter into force. This important condition of the internal legal system has been clear at the international level, therefore it can be considered as a basis to question the validity of this text. However, as before, there is no indication of signature or ratification by Serbia either.

Despite all the doubts, the Facilitator has simply insisted all the time that the texts from 2013 and 2015 are equally legally binding for Kosovo, as obligations that must be implemented. Now this goes even further, including simply an "Implementation Plan" drawn up in 2015. The plan provided for the drafting of a charter for what was then considered the AKSHS through its so-called Management Committee — an issue we will deal with later. The plan failed and remained unusable. However, it was revived by the Facilitator and implemented against the interests of Kosovo, almost as a matter of legal obligation. As a result, a draft statute was submitted based on the exceeded plan, and is now officially on the negotiating table, presumably as a basis for negotiations.

The views of the Republic of Kosovo on the legal status, if any, of the relevant instruments are simply ignored by the Facilitator. Kosovo's position has not been subject to any independent legal expertise or opinion. Instead of providing an assessment based on objective standards, which Kosovo would likely not object to, the Facilitator's contested views on these were simply imposed as law.

IV. Franco-German initiative from 2022

In 2022, France and Germany took the initiative to propose a transitional agreement based on the German-German Basic Agreement from 1972. This agreement opened the way for East and West Germany to enter the UN and confirmed their relationship based on international law and the UN Charter. Both countries agreed to exchange permanent missions and the way was opened for East Germany to be accepted by the Western countries and for West Germany to be accepted by the Soviet Union and its allies.

This initiative was accepted by the PSBE. However, the only thing that this initiative would not offer to the Republic of Kosovo was the formal acceptance of its status by the Republic of Serbia. Following the German example, which had allowed both countries to hold opposing views on the "national issue", the proposed agreement would be without prejudice to the different views of the parties on fundamental issues, "including the issue of status".

The difference, of course, is that in the case of Germany neither of these two states questioned the fact that the other qualified as a state. The differences between them referred to an esoteric question about the continued legal personality of the German Reich after World War II. In this case, however, — Serbia — fundamentally questions the legal existence of the other state, Kosovo. Moreover, it maintains the constitutional claim for the reincorporation of Kosovo into Serbia. This was precisely the way it was intended to overcome the issue of comprehensive normalization in a forced legal form with "recognition in the center".

So in a sense, the Franco-German initiative acknowledged that the mandate of the Brussels dialogue could not be fulfilled, at least for a while. This, however, was offset to some extent by Article 6 of the Brussels proposal. The very title of this agreement, Agreement on the path to normalization between Kosovo and Serbia, [The Framework Agreement, henceforth] would suggest that the instrument would be a step towards full normalization. Moreover, Article 6 of the Basic Agreement obliged the parties to "continue with new impetus the dialogue process led by the EU, which would lead to a legally binding agreement in their relations".

While it did not provide recognition to Kosovo, the Basic Agreement would at least confirm in the form of a treaty the commitment of the parties to good neighborly relations, the exchange of diplomatic missions, the implementation 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 resolve disputes peacefully and to refrain from the threat or use of violence, as provided in Article 2 (3) (4) of the Charter of the UN.

The aim was to pave the way for possible membership in the UN and membership in its specialized agencies, alongside other international institutions. However, this request is of course a little illusory, given the current position of the Russian Federation, which has the right of veto in this matter. Even in relation to other organizations, the obligation to "not oppose Kosovo's membership in international organizations" in Article 4, would rely on Serbia's good will to implement. By voting against the potential membership of the Republic of Kosovo in the Council of Europe, a few days after the acceptance of the Basic Agreement, Serbia immediately demonstrated the lack of goodwill in this process.

V. Serbia's refusal to sign the Basic Agreement and the Annex

Despite all the conjectures, the Republic of Kosovo agreed to sign the Basic Agreement without reservation at the high-level meeting in Brussels on February 27. In fact, she offered to sign it right then and there. This was rejected by the Facilitator out of respect for the Republic of Serbia which was not in a position to do so. Instead, it said, the signing would follow at a later meeting on an implementation annex, to be held soon in Ohrid, North Macedonia, possibly followed by a more formal signing ceremony in Paris.

Upon arriving in Ohrid for the high-level meeting, the Prime Minister of Kosovo once again emphasized his willingness to sign the Basic Agreement together with the Annex that had to be negotiated, there and at that moment. However, the President of the Republic of Serbia simply stated that he would not sign anything, regardless of the content of the implementing annex that had to be added at that moment.

This position was not contested at all by the Facilitator. It seems that this was expected and that the PSBE was prepared for this. Instead of insisting on equal treatment of the parties and putting pressure on the Republic of Serbia to sign, in a surprising move, the Facilitator presented a blank sheet of paper to the Prime Minister of Kosovo for signature, insisting that he alone sign. . Not surprisingly, this one didn't.

Then there followed an unceremonious speech about the Annex, which for Kosovo had lost its meaning at this moment (more on this later), as well as an attempt to save the meeting and the whole process from collapse. In a gesture aimed at facilitating this goal, Kosovo finally agreed to a settlement whereby the parties were deemed to have consented to the Facilitator and not to each other, putting the Basic Agreement and Annex into operation until that moment. blocked.

However, this result has not yet been announced by the high representative for foreign policy and security, Mr. Josep Borrell, the president of Serbia, was already addressing reporters, saying that he had not agreed on anything. Repeated several times since then, the president of Serbia has stated:

I have not accepted the Franco-German agreement. You will not find these statements from me. I have said that I have accepted the concept and that we are ready to work on the implementation of the agreement up to a limit.

This has remained Serbia's position ever since. President Vucic seems to be insisting that Serbia is not bound by the Basic Agreement and that it can only implement the provisions that it can freely choose.

VI. Acceptance of Serbia's request not to be subject to obligations

The EU and friendly governments, including the US, have determined that the Basic Agreement is a binding international obligation. However, in practice, this has had no effect. In fact, the opposite has happened. The Facilitator is exactly following the line provided by the Government of Serbia. It has not insisted that the agreement is binding in relation to the Republic of Serbia, and that it must be officially declared as such by Serbia to have this status. It has not insisted in any way at least that it had a practical effect. In fact, the Facilitator has fully embraced the approach of the Republic of Serbia. It has only and exclusively postponed the issue or issues in the interest of the Republic of Serbia in the subsequent negotiations after Ohrid. So, all talks have focused on the mechanism to implement Article 7 of the Agreement.

Of course, the argument of the Republic of Serbia that it does not want and cannot sign any agreement with Kosovo is simply nonsense. True, the procedure of manifesting agreement with a text through informal communication with the Facilitator, instead of communicating with the other party, was implemented in some cases out of respect for the Republic of Serbia. However, Serbia has in the past signed formal agreements with Kosovo, including those under the umbrella of the EU-led normalization process. For example, the agreement on "Justice" adopted in the normalization process was formally signed by both parties.

This case is different in every respect. The essence of this new "Basic Agreement" is precisely that this would be a formal agreement. This was what the Republic of Kosovo had calculated and that pushed him to offer to sign it, despite some guesses. It is evident that this was the expectation of the EU and the supporting countries. Otherwise, why prepare for a high-level signing ceremony in Paris?

Clearly, it makes no sense to sign the agreement with the Republic of Kosovo that states that relations will be developed in accordance with international law, if Serbia refuses, at that very moment, to enter into relations with Kosovo at the level of international law and sign it in a formal agreement. This negates the very concept of the Franco-German initiative. The Republic of Serbia would, in fact, be allowed to maintain its de jure view of status, while treating Kosovo de facto as a full subject of international law.

The very fact that the Facilitator allows the Republic of Serbia the benefits of the Basic Agreement and the Annex without asking it to sign it proves the extraordinary imbalance in the approach throughout the negotiations. What the Republic of Serbia refuses to do is somehow acceptable, even if it is contrary to the essential object and purpose of the agreement. Kosovo's views, on the other hand, are not taken into account at all. Instead, the Republic of Kosovo is under pressure to accept the result and implement it, no matter how unbalanced it is.

The Republic of Kosovo has officially requested the Facilitator to submit an implementation plan that would balance the performance of the implementation of the obligations arising from the Basic Agreement. This was the case with the implementation proposal-annex that had been on the negotiating table for four months, until it was suddenly rejected without any consultation, right before the start of the negotiations in Ohrid.

The Facilitator had already responded to this request with the formula that the Republic of Serbia would not accept this approach — the very approach that the Facilitator had expressed in all talks since the time the Annex proposal was presented on December 4. Again, the standard on which the negotiations are taking place is to accommodate any obstructive behavior of the other side, including the claim that it is Serbia's job to choose which obligations of the Basic Agreement and the Annex it wants to implement. It is difficult to understand why the Republic of Kosovo should be impressed with this argument, which is simply consistent with the Republic of Serbia's declaration that it is under no obligation to this basic agreement.

VII. Disturbance of the balance of interests in the alleged agreement

This has resulted in a completely unbalanced format of negotiations that the Republic of Kosovo cannot be expected to support with further participation. If the Basic Agreement is binding, then it is binding in all respects. And the very essence of an international agreement is that one party cannot be privileged by being allowed which, if any, of the obligations contained in the agreement it chooses to enforce.

In addition to losing the sequencing of obligations and the sense of balance of the fulfillment of obligations by the parties, the current approach also leaves out some of the less tangible provisions of the Framework Agreement that are of special interest to Kosovo. These are the provisions of good neighborly relations, action in accordance with UN principles, sovereign equality, independence and integrity, etc. There is currently no consideration of the importance of these provisions when it comes to enforcement. However, the Basic Agreement and the Annex expressly state that Kosovo has the right to insist on the implementation of all their provisions, including those of a programmatic nature.

Undoubtedly, this is the very issue that has upset the balance of obligations that Kosovo had the right 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 formally sign an agreement under international law and one that would confirm the implementation of the basic rules and principles of international law in relation to Kosovo. This could be an important step for Kosovo in its effort to expand relations with third countries, including the five non-recognizing EU countries, and to become a member of other international institutions. Again, this was the key benefit that pushed the Republic of Kosovo to accept the Basic Agreement, despite some conjectures on other points. The exclusion of this benefit completely blurs the purported agreement.

Instead of adapting the process that would take this imbalance into account, the Facilitator has simply continued as if the Base Agreement and the Annex are fully in effect on both sides. In fact, it has created a lot of international pressure on the Republic of Kosovo to start implementing a key contribution for Serbia, which is the most difficult for Kosovo. At the same time, there is no hope for other elements of implementation.

VIII. Material breach

The Republic of Serbia does not even admit that it has concluded binding agreements and that it has denied the same in the sense of Article 60 of the Vienna Convention on the Law on Treaties, if the Republic of Kosovo would like to invoke this provision. Consequently, it would not even be necessary to approach the doctrine of material breach, which protects a party in cases where the other party does not adhere to the obligations of one or more essential provisions for the realization of the object and purpose of a the treaty.

Moreover, the very first week after the supposed agreement was reached, the Republic of Serbia began to violate it. One of the obligations that comes into force immediately after the agreement is reached requires that the Republic of Serbia "not oppose the membership of Kosovo in any international organization". Serbia opposed Kosovo's membership of the Council of Europe in the clearest possible way, formally voting against the accession case just days after the deal was supposed to have been reached.

The Republic of Kosovo has notified the Facilitator of this and a number of other violations. There has been no particular reaction, despite the special role of the Facilitator in ensuring that what remains of the Annex to the Framework Agreement is implemented. Once again, the approach seems to be that of tolerating Serbia's illegal actions, while increasing pressure on Kosovo to implement the obligations arising from the Agreement.

IX. Unfair and unbalanced process: The example of Ohrid

This imbalance in substance is also reflected in the imbalance in process. The Ohrid debacle serves as an example. As already stated, an 8-article Implementation Project had been the basis of talks with the parties since December 4. A week before the round of high-level talks began, the Facilitator visited the two capitals, still seeking input. Kosovo offered a number of constructive suggestions. The facilitator left indicating that about half of them were acceptable and would be considered.

The Kosovo delegation had planned to travel to Ohrid on March 17. From 21:00 in the evening, the night before the departure, i.e. late after the closing of the working hours, only one copy of the revised Project Annex had been submitted to the Government of Kosovo.

The government was given the impression that it would not even be allowed to make a photocopy of the document it was handed over to discuss among its key members. While the Facilitator has denied having drafted it, there is no doubt that this was the belief that was created at the top of the Government of Kosovo. True or not, the fact that the Government acceded to an unusual request to circulate only one copy of this document to key members for overnight review indicates its desire to act in accordance with the procedure laid down by the Facilitator, despite how absurd it might seem.

However, late at night, shortly before departure, a completely new version of the Annex was submitted, now with 18 instead of 8 paragraphs and three pages instead of the single page of the previous version.

None of the substantive comments provided by the Republic of Kosovo were taken into account. Instead, the balance of obligations had shifted in a number of important respects even more in favor of the Republic of Serbia. Some of these dramatic changes were later said to be drafting errors, which, even if true, would not serve to extol the Facilitator's competence in this entire enterprise.

This unilateral change of conditions on the night before the departure was resisted by the key EU governments, which seem not to have been consulted at all about these important changes to the detriment of Kosovo. This included the proposal that the Facilitator appoint himself as the final arbiter on the issue of the implementation of Article 7, transforming the talks on the Serbian Orthodox Church from contacts between the Church and the Kosovo authorities, to talks between Serbia and Kosovo; limiting Serbia's obligation not to hinder Kosovo's membership in international organizations, only in relation to European organizations (that is, not the UN and its organizations), transferring the powers and functions of parallel structures to the mechanism of Article 7 and thus, however, to create a new plane of power, etc.

Before the talks started, the Kosovo delegation was assured that at least some of the changes that had been made hastily and without any justification or clarification, would be withdrawn before the start of the negotiations the next day. However, this did not happen and the negotiations started on the basis of the document that was changed unilaterally and so fundamentally, despite the protest of the key EU states.

Negotiating on this basis represented a material disadvantage for Kosovo. In fact, he may have had to postpone the process until and on the condition that this unilateral act was corrected. Regardless, in the interest of progress, her delegation sat down to work, commenting even on the new draft, treating it as the basis for talks. Of course, the moment the Republic of Serbia announced that it would not sign it, whatever the outcome of further talks, there was no longer any logic for the negotiations to continue. The process degenerated and in the end, a strange skeleton of what was left of the Annex joined the Basic Agreement.

From the final version of what was called the Annex, the preliminary request of the EU was removed that some obligations from the Basic Agreement, relevant for both parties, especially for Kosovo, would enter into force only after Kosovo, unilaterally, fulfilled some of its obligations. Therefore, all obligations arising from the Basic Agreement are in force, provided that the Basic Agreement is in force. Therefore, all obligations must be fulfilled. There is no prioritization of the enforcement of one obligation over another, which is the opposite of the approach chosen by Facilitation currently. The Facilitator's refusal to establish a clear, balanced and realistic implementation plan is inconsistent with this conclusion.

X. Implementation of Article 7 only, and even partially

Currently, the entire negotiation process is focused on Article 7. In fact, the Facilitation has suggested that a separate negotiation path be set, separate, only in terms of the implementation of Article 7. In this context, reference is often made to an AKSHS, in rather than using the terminology defined in the Basic Agreement.

The Basic Agreement is based on prior agreements and language in relation to this issue. Article 7 does not deal with an AKSHS, but with:

... reaching specific agreements and guarantees, in accordance with the relevant instruments of the Council of Europe and using existing European experiences, to ensure an appropriate level of self-management for the Serbian community in Kosovo and the possibility of providing services in several specific areas, including the possibility of financial assistance from Serbia and direct communication channels of the Serbian community with the Government of Kosovo.

That language, used in a post-2013 settlement and the purported 2015 settlement, now applies in this separate case. The task is to ensure an appropriate level of self-management focused on the provision of services in certain areas. Kosovo has the right to refer to this language as dominant in this matter. While the Base Agreement and Annex also refer to prior agreements and arrangements, this new language presents the issue in such a way that the new wording should apply from now on (lex posterior derogat legi priori). There would be no logic in drafting the obligation in such a complex form if there was no sense in it and if prior practice and reliance on prior documents would simply continue.

As is well known, this is a very sensitive area for the Government of the Republic of Kosovo. However, at the High Level Meeting in Brussels on May 2, the Prime Minister of Kosovo offered a vision on how to approach this topic. However, there has been no informal or constructive consideration of the ideas presented in this vision. The incoming comments are focused on more peripheral issues. Instead of engaging in the substance of the vision and the example taken in support of it, the Facilitator offered rigid and arrogant responses to Kosovo's submissions on this and other issues.

XI. Purpose of the 2013 Agreement

The high representative of the EU at the time, Baroness Ashton, confirms that the involvement of the then AKSHS in 2013 was intended to serve as a tool to address a very worrying issue in Kosovo. This was putting an end to the parallel illegal structures of governance in the north of Kosovo, which was partly under the leadership of Serbia. The establishment of the AKSHS was intended to give the local population, mainly Serbs, the assurance that the withdrawal of these illegal parallel structures would not leave them without any means of coordinating the individual actions taken by the Serb-majority municipalities within their competences. expanded.

Starting from the negotiations in Rambouillet and throughout the Ahtisaari process, it has always been clear that Kosovo would not accept the third level of government in the country, the one between the central government and the municipal one. This was actually fully accepted by Ahtisaari's team, given Bosnia-Herzegovina's unfortunate experience with wide autonomy solutions.

However, in the 2013 Basic Agreement, Kosovo offered to provide municipalities with a mechanism through which they would coordinate their policy and action in relation to the powers and extended powers they already had under the Ahtisaari document. and the Constitution of Kosovo. These would not be new powers or increased powers. They would have to do with the exercise of existing powers. Furthermore, each municipality would take agreed action through the mechanization of the AKSHS individually. AKSHS would not have executive power.

This, however, was conditioned by the suppression of illegal parallel structures. The balance of this 2013 agreement is lost in the current debate. All attention has been focused on the issue of the AKSHS, and no attention has been given to the balancing goal of 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 agree to a process that follows the "methodology" adopted so far. Until now, the Facilitator has followed the practice of submitting a document that he has drafted himself. After listening to the parties, he presents the revised version. In general, this has only accommodated the views of the other party, that is, the Republic of Serbia, as happened in Ohrid, while it has ignored the positions presented by the Republic of Kosovo. Then this document is announced by the Facilitation as, in essence, unchangeable (as it was the Basic Agreement after the comments received), or that the document will serve as a basis for negotiations, as happened in Ohrid.

Taking such a result as a "basis for negotiations" means that, if the two delegations do not support a change, the text will remain unchanged. If the presented text is shaped in such a way as to attract the acceptance of Serbia, but not Kosovo, then this approach is clearly unfair and unacceptable. And as Relief himself is realizing, also unproductive. A result produced in this way, in the end, will not be approved by the Republic of Kosovo. It is interesting that in this case, even Serbia did not consider it necessary to accept it formally, but it turned a lot into its own interest, knowing that it could collect the benefits from the fulfillment of obligations by Kosovo, even even without offering the full signature and performance in return.

XIII. The issue of the management committee and its proposal

One of these issues concerns the so-called Management Committee. In 2015, its creation was foreseen with a simple "plan", that the four mayors of the municipalities in question would constitute this Committee to present a draft statute for what was then described as the AKSHS. The "plan" had no or very undefined legal basis. However, it has been violated by time and the events on which its operation was to be based, since it had foreseen actions within days or months and not years. However, the Facilitator insisted that the Management Committee would now, eight years later, present the draft statute.

Kosovo objected, emphasizing, for example, that one of the members of this Management Committee served as a deputy of the Assembly of the Republic of Serbia. It was a clear violation of the text and very clearly of the spirit of the original instrument. Finally, the person in question, Mrs. Danijela Vujičić took the oath as a member of the Assembly of the Republic of Serbia on August 3, 2020. According to the oath, she is obliged to "serve the citizens of Serbia", which makes it a clear conflict of interest in this aspect. So, according to her role as a member of the Management Committee, she is required to represent the citizens of Kosovo in the respective municipality.

When this was challenged by the Republic of Kosovo, the Facilitator's response was that the relevant instruments did not expressly exclude this possibility. Therefore, the representation of a member of the Serbian Parliament could not be opposed, regardless of the underlying reasoning of the complaint. By the same token, one could say that the hippopotamus could also be a member of the Committee, since even this case was not expressly excluded.

The Facilitator explained his behavior which, to put it mildly, ignored the purpose and spirit of the provision, and in the worst case, was offensive in relation to the Republic of Kosovo. This reading of the arrangements ensured that Serbia, which controlled the Management Committee through its employees or even individuals dependent on them, would be doubly represented. Once as the body that drafts the statute and the second time as the negotiating party that would consider that proposal.

The management committee was also allowed to avoid the very Plan on which its participation had been made possible. According to the Plan, it had to function and coordinate its action with the Ministry of Local Government Administration of Kosovo. The Committee did not communicate with the Ministry, despite requests to do so. Kosovo, under whose authority this committee had to act, had not even seen the project before it was submitted to the dialogue.

Moreover, in the talks aimed at encouraging Kosovo to participate in this project rollout process, the Managing Committee, the Facilitator and the supporting governments had given strong guarantees to the Government of the Republic of Kosovo. Kosovo understood that the project, if it is not consistent with the agreed criteria that will be mentioned below, would be declared unacceptable. Instead, Kosovo would have the opportunity to present a balanced and credible project that would serve as a basis for negotiations.

This was not respected. The project of the management committee was accepted. From the perspective of Kosovo, it was completely unacceptable, because the document presented an autonomy design that had been expressly excluded by the Facilitator and the supporting states as a possible model or as a basis for dialogue talks. The example of Republika Srpska was often cited as evidence that such a design could not and should not be presented.

XIV. Partial view of Article 7: The issue of parallel structures

As stated above, what was described in 2013 as the AKSHS, was created as a means to put an end to the illegal activities of parallel structures. This should have two aspects. Those activities for which there is no legal jurisdiction exercised by the municipalities in Treva should be extinguished. On the other hand, the exercise of the powers and extended powers that the municipalities legally enjoy individually, in coordination with each other, could be facilitated through the AKSHS, because the parallel structures would be extinguished.

In the Implementation Project Annex dated March 16, it was proposed that "all structures and services remaining in Kosovo and administered by Serbia will be transferred to the mechanism, which will be created as part of ensuring an appropriate level of self-management for the community Serbian in Kosovo". Given the proliferation of activities of illegal parallel structures, this would mean that the Article 7 mechanism would be transformed into a powerful new level of power and an executive agency that would take over the administration of parallel functions from Serbia — the model of Republika Srpska, which has been excluded from the beginning.

To justify himself, the Facilitator explained in Ohrid that this was a drafting error. The aim had been to ensure that the parallel structures would be withdrawn. In this case, the legal functions would be performed by the individual municipalities, although in cooperation with each other, through the mechanism of Article 7.

Article 7 of the Basic Agreement actually provides the means to deal with parallel structures. The mechanism to ensure the appropriate level of self-management provided for in that article is further balanced by another instrument. This is the agreement with the Republic of Serbia for the possibility to continue with the financial support for some of the powers and functions that legally belong to the municipalities. If there was a transparent mechanism that included the authorities of the Republic of Kosovo, through which these funds are transferred, this would in essence close the operation of parallel structures, at least in the areas that fall under the competence or extended competences of the municipalities.

Again, however, this balancing fact was completely ignored in the talks regarding Article 7. All attention and much pressure was directed against the Republic of Kosovo to provide a statute for the mechanism, while no attention was paid to the key issue that led to its introduction of this issue in the First Agreement of 2013.

XV. Facilitator as King

The result is that there is now a long text on the table, and from the perspective of Kosovo, completely unacceptable, of the proposal of the supposed management committee, as a basis for negotiations. The Government of Kosovo has been asked to present its own project. The expectation is that there will then be talks leading to the adoption of the proposal which, in the Facilitator's view, represents an acceptable solution lying somewhere between the two projects.

In the Draft Implementation Annex proposed the day before departure for the Ohrid meeting, the Facilitator gave himself the role of "final arbiter" in relation to any implementation issues not resolved by agreement of the parties in the Joint Committee tasked with the resolution of disputes between parties, also chaired by him. This led Kosovo to realize that the Facilitator would, in the end, simply impose his vision of what the Article 7 mechanism would look like in his role as "final arbiter". This recalls the role of a high representative in cases of international governance of a territory, as for example in the past in Bosnia-Herzegovina or, no doubt, in Kosovo under the administration of UNMIK. It seemed to be returning Kosovo to the state it had reigned in immediately after the 1999 war, before it was established as a state with full sovereignty.

Then, as now, the finding of this "final arbiter" could be imposed on Kosovo through international pressure. Thus, an actual or virtual autonomy for the north of Kosovo could be imposed on Kosovo, that is, the territorial sovereign over the territory in question, questioning the sovereignty and territorial integrity of Kosovo.

This proposal was ultimately eliminated in the chaotic developments in Ohrid. However, it has now been revived in a slightly different form. The facilitator has now suggested it a Methodology for negotiations on the statute and for the establishment of the Association/Community of municipalities with a Serbian majority. Incidentally, this title takes us back to 2013 and does not reflect the language of Article 7 of the Basic Agreement.

In substance, the proposal suggests that the Facilitator will listen to the views of the parties on a proposed statute. Either of them can give the remarks, but it seems that it will be the Facilitator who produces the charter in the end. Remarks on the text do not mean that it is not the final text of the draft statute. In fact, they would be recorded in the marginal notes that follow the draft statute and that were written based on the comments of the parties. In practice, they would not matter. The document will remain as the final result, with or without recorded comments.

So again, it cannot be expected that the Republic of Kosovo will give up its sovereignty over its territory to the point of allowing a statute to be imposed on it to which it has submitted objections.

The same applies to the Facilitator's proposal to establish a separate negotiation mechanism, focused only on the Article 7 mechanism, held only at the technical level (by five technical experts for each party) subject to the general guidance and final control of the facilitation , as described.

Once again, it should be recalled that Article 7 is not the only provision of the Basic Agreement. The Republic of Kosovo will probably not agree to separate negotiations on just one issue and address it as isolated through its own separate mechanism. In fact, even Article 7 foresees two other and related elements, while neither would be included in the work of that specialist working group. So, if there will be further talks on the implementation of Article 7, then the chances are that they will take place at the level of the chief negotiator, as has been the case all along. Each delegation has the right to include any technical expert.

XVI. Denial of own commitments by the Facilitator himself

It is true that the Basic Agreement contains a commitment to take action in relation to the Article 7 mechanism.

However, this is the mechanism described in the precise language of that agreement — a mechanism that would provide an appropriate level of self-governance for the Serb community in Kosovo and the ability to provide services in specific areas, not an AKSHS. Moreover, Kosovo weighed its decision to accept the agreement very carefully. He accepted based on the strong promises that have been repeated to him with consistency before making the decision.

The first pledge of this kind was made by the then High Representative, Federica Mogherini, in 2015. This pledge is in writing and is very specific and precise, confirming that what was then called the AKSHS would not become a new layer of power. in Kosovo. Furthermore, the body would have no executive powers.

The second level of commitments came from the Facilitator himself personally, supported by supporting states, in particular the US. These commitments make it clear that the body will only have a coordinating function. Again there will be no executive power. Moreover, it was made clear by the Facilitator himself and the partners, that the statute must be in accordance with the Constitution of Kosovo and the judgment of the Constitutional Court, and that it will have to be evaluated by this court before it is approved. A summary of some of these pledges is attached to this writing.

Third, there is the text of the Basic Agreement itself. Its language clarifies, for example, that the function of the Article 7 mechanism concerns self-management in relation to the provision of services in certain spheres. This means that its scope is limited to the kinds of practical arrangements that individual municipalities can undertake within their jurisdiction.

Fourth, it is international law itself that imposes certain requirements on both parties and the Facilitator. For example, it would not be possible to envisage a mechanism that is contrary to the obligation of non-discrimination. This was proven in the case Finns in relation to the Dayton Agreement for Bosnia-Herzegovina according to the decision of the European Court of Human Rights.

When the Republic of Kosovo reminded the Facilitator of the commitments made before the Basic Agreement and the Annex were accepted, it received an extraordinary response. Instead of confirming his own and the EU's commitments given at the highest level, he stated that he could not be bound by those documents alone, "although the EU did not rule out being guided by even any of them, when talking about the establishment of AKSHS".

Incidentally, this arrogant wording suggests, once again, that it will be the EU and not Kosovo that will establish the Article 7 mechanism – an issue that the Facilitator still refers to as the AKSHS, despite the clear designation in the Framework Agreement.

In terms of substance, however, the Facilitator's courage to say so in writing will be unique in the history of diplomacy. The Special Representative is a creation and instrument of the EU. He is obliged to the mandate, which was given to him to facilitate, not to mediate or even to impose. He also commits to the commitments that his organization has made at a high level and in a formal way. In this case, this is a formal guarantee given by his superior, then Vice-President of the European Commission and High Representative for Foreign Policy and Security, in relation to the arrangements of 2013/2015. These are precisely those arrangements that the Facilitator says bind Kosovo and settle the issue. Kosovo does not believe that the EU has the intention or the ability to deny the guarantees offered with so much clarity, without releasing Kosovo from the agreement that was supposed to be based on these guarantees.

Second, it is amazing to see how the Facilitator does not consider himself bound by the guarantees he gave himself only a few weeks earlier, when he was trying to convince Kosovo to accept the Framework Agreement. Now that Kosovo has accepted it, it appears that these have become disposable and may or may not be relied upon at the Facilitator's own discretion. In any context, such behavior would be considered a breach of trust. The Republic of Kosovo can be forgiven for losing confidence in the entire negotiation process led by the current Facilitator.

XVII. General approach

Kosovo has repeated many times its concerns in a rational and reasonable form. They have not been considered substantively. Despite the change in the burden of obligations and benefits caused by the refusal of the Republic of Serbia to formally sign the Basic Agreement, negotiations continue almost without any change. This and other issues raised have received irritating, arrogant and purely technical responses that do not deal with them at all.

For example, the Republic of Kosovo filed a complaint against several statements of the President of Serbia after the alleged agreement of the Basic Agreement and the Annex, also reflected in several letters sent to the Facilitator. These statements and letters seem to be intended to reserve Serbia's position as long as they declare that no binding agreement has been reached with Kosovo, and that it will choose whatever obligations it thinks it should implement, if any.

Instead of addressing the reversal of the balance of obligations that would occur if this position were to be maintained, the Facilitator hired the Government of Kosovo with a dissertation on international law on the reservations established by the Vienna Convention on the Law of Treaties.

True, there can be no reservations in bilateral treaties. Reservations must be made in time and addressed to the other party or visa. But this is precisely the essence of the complaint. According to the Vienna Convention, unilateral declarations, regardless of how they are drafted or what they are called, which are intended to exclude or change the provisions of a bilateral treaty, are equated with an offer for a new treaty. They would confirm that no treaty has been reached. Alternatively, if these are designated as so-called interpretative declarations, indicating how a party intends to interpret certain provisions of an agreement, they are inadmissible if they are in fact intended to exclude or modify elements of a the treaty.

In this case, it should be the role of the Facilitator, who seems to be acting in the role of visar, since he has accepted the alleged agreement of the parties, to formally reject any unilateral act of the Republic of Serbia that overturns precisely the object and purpose of the agreement in question. This expectation applies regardless of whether these declarations were made at the time of the supposed acceptance of the text or later and whether they were designated as reservations, interpretative declarations or something else.

Letters reflecting the type of statement described above would in effect amount to a formal denial of any agreement (“I have not accepted”). Again, regardless of whether they were made publicly or in letters addressed to the Facilitators, this is the approach that the Republic of Kosovo has the right to oppose. And this objection deserves a substantive response and, no doubt, the action of the Facilitator.

In a more general form, as in the preliminary negotiations where the Republic of Kosovo was involved, the approach seems to be to first negotiate for what the Government of Kosovo thinks will be the agreed result and then this issue is referred to Belgrade for the actual negotiations. In order to push the Government of Serbia to accept, the result will then be fundamentally revised, unilaterally and contrary to the interest of the Republic of Kosovo. The assumption is that Kosovo, in the end, may succumb to the pressure to accept such a lopsided result.

Of course, textually in all past instances, Serbia has relied on this somewhat naive and clearly unequal approach of the international interlocutors to gain the maximum of concessions, while in the end, even then, it would not sign the final result (Rambouillet, Ahtisaari , Basic Agreement).

This is exactly what happened the night before departure to Ohrid. Kosovo was prepared to be included in considerable detail in the Project Annex, which had been on the table for the past four months. Then, a new, completely different version accommodating Belgrade was presented as a surprise. However, when the Republic of Serbia nevertheless refused to sign any agreement or annex, the Facilitator still agreed and imposed an outcome where the Republic of Serbia is allowed to choose which, if any, obligation it would be able to enforce; not as a matter of legal obligation, but as a matter of choice. Kosovo, on the other hand, is required to unilaterally implement the obligation, which is the heaviest from its point of view.

While he caused the Republic of Kosovo to contest both that and the process itself, the Facilitator nevertheless insists on giving himself the power to make decisions on key issues for the parties and to implement them. This is not believed to be acceptable to the Republic of Kosovo.

Moreover, there is no clear perspective on how the entire implementation will proceed. The Facilitator has refused to offer a clean, sequenced and time-bound plan that weighs the obligations of both parties against each other and establishes some kind of balance, as was attempted with the December 4 Project Annex.

There is also no guarantee how the commitment to achieve full, final, recognition-centered normalization will proceed — a process that was thought to gain additional momentum under Article 6 of the Agreement.

The Facilitator's reasoning for this failure is that Serbia would never accept such an approach in future implementation or general normalization talks, no matter how balanced it might be. That's why it had to be abandoned.

For the Government of the Republic of Kosovo, answers of this type confirm again that this process is not conducted as a true negotiation between equals. The EU is eager to draw Serbia into itself. This emphasis has taken on greater weight with the current conflict resulting from the aggression and occupation exercised by the Russian Federation against Ukraine.

The Republic of Kosovo has made it clear that it fully supports the goals of the EU and other key states in relation to Ukraine and the shape of a stable and democratic Europe. While the Government of Kosovo has doubts about the true interests of the Serbian leadership to pursue Euro-Atlantic integration, it does not want to annihilate the EU's plans and hopes in this regard.

So, again, it seems clear that Kosovo wants to negotiate and should negotiate for the interests of Kosovo, and not for other goals. As in the past, one can assume that it continues to be willing to engage in trade-offs in negotiations of this type. However, it is unlikely to encourage a process that is intended to produce results with which it has not freely agreed.

Considering this general situation, which became even more complex with the latest developments in Kosovo, it is evident that the talks face the risk of failure, and with it the entire process of normalization. The welcome Franco-German initiative and the Basic Agreement that flowed from it have been grossly misused. It is true that there was a "reward" in terms of progress towards membership in the Council of Europe. However, this is a factor outside the Basic Agreement or the Brussels process itself and that may now be at risk.

The Franco-German initiative was intended to advance and stabilize relations between the parties, with the condition of achieving complete and comprehensive normalization in a legally binding manner. Instead, in the way it has been used, it has disrupted the relationship between the parties. The agreement was able to provide a balance of mutual obligations. However, a deep imbalance has resulted from this approach of Facilitation, which has accepted Serbia's position as an unshakable fact and Kosovo's views as trivial irritations.

The Republic of Kosovo has benefited nothing from what is foreseen in the agreement itself. The very fact of failure to sign and accept the agreement has completely eliminated the effect of the agreement, with which Kosovo was counting on relations with third countries and organizations.

In terms of the latter, Serbia has already openly denied its commitment, very clearly defined in the agreement, not to hinder Kosovo's attempt to join international organizations. And it maintains that it will decide which, if any, commitments from the Basic Agreement it will implement. Kosovo, on the other hand, is supposed to be forced to implement the key issues that are of interest to the other party — the party that does not even acknowledge that it is a party to the agreement in relation to the Republic of Kosovo.

In fact, this episode has now focused the entire process of normalization on the totemic issue of what was previously known as the AKSHS, now a mechanism for the implementation of Article 7. There are few incentives for Kosovo to allow itself to be swallowed up by the vortex of this dynamic that so clearly goes against the promised goals and against the structure of the process, which was supposed to focus on comprehensive, legally binding normalization with recognition at the center.

XVIII. The way forward?

This could even be a moment for the EU as an international institution with the mandate to lead the normalization dialogue to reflect on the current situation. If the dialogue is to continue, it must be balanced and correct. It cannot be a mechanism that accommodates only one side, in terms of broader strategic interests, and ignores the other side. It cannot be a process that imposes results on the party who, in fact, has accepted and repeatedly shown the will to formally sign the Basic Agreement and the Annex.

In fact, the president of Serbia has repeatedly said that he will never move money towards the recognition of Kosovo's status, that is, towards comprehensive normalization in a legally binding form. The EU may have to face the prospect that the whole process of normalization and the focus on recognition is in fact a vision.

If this is the case, then the target of international pressure should be the Republic of Serbia and not Kosovo. Kosovo has accepted all international efforts to address the crisis that involved Kosovo from the Rambouillet Agreement to the Ahtisaari negotiations and now the Brussels Basic Agreement. Serbia has never accepted any of them. However, it is Kosovo that finds itself under pressure, threatened with sanctions and unspecified "measures" by friends and allies.

It cannot be expected that the Republic of Kosovo will respond positively to the pressure to implement the previous agreements, and now also the Basic Agreement and its Annex, if the whole process is focused on the illusion that maybe someday Serbia will get in order and accept his obligations. Someday the moment of truth must emerge. Does the Republic of Serbia accept normalization or not? If so, the minimum that can be expected is to sign the Basic Agreement. This agreement is deliberately and even very generously framed, by its intellectual parents, France, Germany and the EU, as simply "a step on the path to normalization", enabling Serbia to progress without formally recognizing the status of the Republic of Kosovo. This goes against the interests of Kosovo, but was accepted by Pristina in honor of its international partners.

To be clear, there is no indication that the Republic of Kosovo intends to repudiate the Basic Agreement and the Annex, despite the unfortunate circumstances of their birth. On the contrary, it has given assurance that the Basic Agreement is equally binding for both parties. If the other party says it is not bound by the agreement, both inside and outside the process, then the Basic Agreement does not exist. Similarly, the Republic of Kosovo cannot be expected to offer a full commitment if the other party reserves the right to choose which, if any, obligation it will enforce at its own discretion.

Where Article 7 is concerned, the commitments made by the EU must be respected along with the self-formulation outlining the modalities of implementation. All elements of Article 7, and without a doubt, all elements of the Basic Agreement and the Annex, including the programmatic provisions, must be implemented. Moreover, there should be a balanced implementation process that provides equal benefits to both parties according to a clear sequencing. Ultimately, the perspective for the implementation of Article 6 on the renewed drive to achieve full, comprehensive, recognition-centered, legally binding normalization must be strongly determined.

It would be a mistake to see these points as conditions that Kosovo could set in the process. In fact, there is a need for the process to return to the line of legitimate expectations and the current mandate. The points listed below are the commitments made by the EU and the supporting countries. Moreover, they also derive from the Basic Agreement and the Annex itself, as well as from the general principles of neutrality and equal treatment, which should underpin a negotiation of this type.

Appendix:

GUARANTEES OF MR MIROSLAV LAJÇAK AND THE USA

KOSOVO WILL DRAFT THE STATUTE [not the Management Committee]

Lajçak said that he had assured Kurt that the details of the Association would "are drawn up by you and in agreement with you".

"You're not going to write something you don't agree with. The second point is that there are existing models, functional European models. I have 15 analyzes on the protection of minorities on my desk in Brussels. Some models you may not have heard of. None of them have caused dysfunction where they have been implemented", said Lajçak in continuation.

He added that a lot of time is being wasted talking about something "that doesn't exist and something that you will co-write".

January 27, 2023, 

Instead, we are asking Kosovo to give us its vision for this community, and we are ready to provide expertise and political support to ensure that it will work in the best interest of the citizens of Kosovo.

USA, Chollet and Escobar, 30 January 2023,

IN ACCORDANCE WITH THE LEGISLATION OF KOSOVO AND THE JUDGMENT OF THE CONSTITUTIONAL COURT

Regarding the issue of the Association of Municipalities with a Serbian majority, Lajçak said that he knows "the verdict of the Constitutional Court almost by heart and it says that the Association should be establishedt ".

"The government must take into account the conclusions of the Constitutional Court. I believe that the conclusions are clear and that the judgment says that the Association's statute should be drawn up and that the Government's decree should take into account the Court's conclusions', he said.

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

February 24, 2023,

There was also a television interview as soon as the drafting of the Basic Agreement was completed:

Article 7 says a very important thing - that there can be no agreement on the normalization of relations between Kosovo and Serbia without offering constitutional and institutional protection to the Serbian community in Kosovo. This is what Article 7 is about. The details should be agreed between the parties in the dialogue based on the 2013 and 2015 agreements, taking into account the opinion of the Constitutional Court and also taking inspiration from existing European models that work well. .

March 11, 2023,

; AND 

Today's discussion reflects the importance that the United States and our partners attach to Kosovo for the implementation of an Association of Serb-majority Municipalities, which is in accordance with the Constitution of Kosovo and the decision of the Constitutional Court of 2015.

As some US officials have already pointed out, I also want to be clear about the position of the United States. We do not support any agreement that violates the Constitution of Kosovo, that is not in accordance with the decision of the Constitutional Court of 2015, or that would threaten the sovereignty, independence, multi-ethnic character or democratic institutions of Kosovo. We strongly oppose the creation of any entity resembling Republika Srpska in Bosnia and Herzegovina.

USA, January 31, 2023, 

THERE IS NO NEW PLANE OF POWER AS IN THE REPUBLIC OF SERBIA

We are wasting time, Kosovo should not be afraid of AKS, it will not be the new Serbian Republic

Lajcak also said that Kosovo should not be afraid of the establishment of the Association of Municipalities with a Serbian majority, which, as he said, does not mean another Serbian Republic.

"It is something that will be developed, established and signed only by Kosovo", stressed Lajçak.

He also stated that Kosovo is wasting time by resisting and opposing the establishment of the AKS.

"I am surprised that people are afraid of something that does not exist. Second, you will shape it, it will not be imposed. Kosovo has an equal role in the dialogue, just like Serbia. What you signed means that you agree with it. You will no longer sign something you don't agree with," said Lajcak.

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

Lajçak: "I think that the international community has made these mistakes in the past in the Balkans, coming up with suggestions that have not been tested in other countries. Not everyone has 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 referring to Bosnia-Herzegovina and Republika Srpska - something Pristina says is a failure and fears with the proposed creation of Association in Kosovo.

January 27, 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 something similar to the 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 Association 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 strongly oppose the creation of something similar to the Republika Srpska ethnic community in Bosnia and Herzegovina

USA, January 31, 2023,

FUNCTIONAL POWERS FOCUSED ON SERVICES ONLY

"I think that Kosovo is multi-ethnic, we are talking about the Association and I don't think that there is a single mono-ethnic municipality. 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 the functionality and its legal system. Why should we do this?" he [Lajcak] said.

February 24, 2023, 

The solution should also provide assurance that there is nothing to fear. Rather, the solution should improve communication and cooperation between municipalities with a Serbian majority, improve communication between the Serbian community and the Government in Pristina, and establish clear rules for communication and cooperation between the Serbian community in Kosovo and the Government in Serbia.

March 11, 2023, 

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

USA, January 30, 2023, 

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

Chollet and Escobar, January 30, 2023,

THERE IS NO THIRD PLANE, THERE IS NO EXECUTIVE POWER

In the context of our discussions on the establishment of the Association/Community of Municipalities with a Serbian majority, I would like to confirm that it is the understanding of the EU that the Association/Community - in accordance with the first Agreement and the laws of Kosovo - will not constitute a third level of government and will not have executive powers. Mogherini's letter, 24 August 2015

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

Chollet and Escobar, January 30, 2023,

THERE IS NO DISCRIMINATION

It is also important to note that an Association of Serb Majority Municipalities would not be mono-ethnic. 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. The members of the AKS will be local officials already elected as representatives of all residents in their municipalities. Ensuring that the AKS remains open to all ethnicities and within the structure of Kosovo's legal framework was the main concern of the Constitutional Court of Kosovo, which demanded that the initial proposal be adapted, not rejected, and reiterated the obligation for the formation of such an association under the Brussels agreement.

Chollet and Escobar, 30 January 2023,

© translated Flaka Surroi