Weller: The Crunch-point at the Upcoming Ohrid Negotiations on Normalization

Article 7, or indeed the entire Basic Agreement, does not mention the term Association/Community of Serb-majority municipalities at all, not with one single word. That concept has now been modified by what sounds like the more modest reference to ‘self-management’ for the Serbian community in Kosovo. In the final version of Article 7, the term ‘self-management’ replaces the words ‘self-government’ in the initial proposal for the Basic Agreement, emphasizing the more modest functions that are envisaged.

This coming weekend the high-pressure negotiations on normalization of relations between Kosovo and Serbia will continue. At the end of February, the parties already accepted the Preamble and 11 substantive Articles of the Basic Agreement as the final text that will no longer be negotiated. However, the next step remains a crucial one: reaching agreement on provisions on implementation of the Articles in an annex which will be considered an integral part of the instrument. The Basic Agreement will only be complete, and ready for formal signature, once that task has been achieved.

It is by now generally understood that this agreement will only represent a step on the ‘path’ to full normalization. It would not yet amount to formal, mutual recognition of the two states. Yet, it would clarify that Serbia and Kosovo would treat each other according to international law, including the principle of sovereign equality of states, the prohibition of threats and uses of force and the obligation to settle all disputes peacefully.

Moreover, acceptance of the agreement would likely open up Kosovo’s membership in the Council of Europe. Conversely, Germany is reported to have urged other Council of Europe members to delay admission, or to rule it out for now, if Kosovo is seen to obstruct the conclusion of the Basic Agreement in its final form.

According to the Basic Agreement, Serbia would have to stop opposing Kosovo’s participation in any international organization. Indeed, the day after the text of the Basic Agreement was declared to be final, President Vučić announced that Serbia would never comply with this commitment. This evident flouting of a key commitment as soon as it was agreed will strengthen Kosovo’s argument that implementation guarantees need to work both ways, and not focus on Kosovo’s performance alone. Serbia, too, will need to be held to its word in a verifiable way. Of course, even with Serbia’s enthusiastic support for Kosovo’s UN membership, this would not by itself clear the obstacles towards admission, given the attitude of the Russian Federation.

Moreover, the agreement would not fully unblock the path towards EU membership for Serbia and Kosovo respectively. For Serbia, membership cannot take place while it maintains, in its constitution and policy, a claim to another state, that is, to Kosovo. Comprehensive normalization will require its acknowledgement of Kosovo’s status.

Kosovo is hampered by the fact that five EU states still refuse to recognize Kosovo. A few might change their position in view of the Basic Agreement, provided it is fully ratified by the parliaments of both sides. They might see ratification as a more formal confirmation at least of Serbia’s de facto acceptance of the existence of Kosovo as a state through the Basic Agreement. Then again, adding a requirement of ratification could, in the end, result in an agreement that may never enter into force. Moreover, others among the non-recognizers might continue to insist that they will only recognize Kosovo upon the conclusion of a final, comprehensive and legally binding agreement on normalization between Kosovo and Serbia, along with formal recognition between the two.

Pressure to Conclude the Basic Agreement by the End of Next Week

Whatever the immediate benefits for either side under the Basic Agreement, the EU and its members states, in particular France, Germany and Italy, along with the US, have significantly increased the pressure on both parties to finalize the Basic Agreement, and to do it now. Mr Lajčák, the EU Special Representative for the Normalization Dialogue, has upped the stakes for the next meeting, to be held in Ohrid at the end of this coming week. He has suggested that the entire package could already be agreed on that occasion.

As before, the critical sticking point will concern the implementation of the 2013 First Agreement on Normalization. The First Agreement inaugurated a whole series of additional undertakings reached between the parties through the EU-led Brussels dialogue since then. That agreement famously foresaw an Association/Community of ethnic Serb-majority municipalities.

Ever since then, Belgrade has insisted on the implementation of the Community/Association. Of course, this commitment is only one of many emanating from the Brussels dialogue. In the main, it is Serbia which has not implemented several of the other agreements. Indeed, the Association/Community is not even the only subject of the first Brussels Agreement of 2013, with other commitments it contains also in part left in abeyance. Nevertheless, Serbia has managed to endow the issue of the Association/Community, often referred to as ‘ASM’,’ with a certain totemic quality. Unless Kosovo implements that commitment, it argues, normalization cannot proceed further.

This view appears to have been adopted by the EU Facilitators, Germany, France and Italy, and the US. In fact, the US rather dampened the enthusiasm and praise for Kosovo’s decision to endorse the 11 Articles of the Basic Agreement so clearly and unambiguously at the Brussels meeting last month. Its Special Envoy and Deputy Assistant Secretary of State, Gabriel Escobar, captured the headlines the following day, when his remarks were perhaps somewhat unfairly taken to suggest that implementing what he called the Association of Serb-majority Municipalities by Kosovo was ‘a definite order’ from the international community, or at least the US. [https://sot.com.al/english/aktualitet/eshtja-kosove-serbi-shba-jep-urdher-te-prere-i573370.]

This sense of a hard-line attitude on the part of the international community was reinforced by rumours that the Facilitators would insist that Kosovo has to establish the Association/Community first, literally within days, even before the bulk of the substantive provisions of the Basic Agreement would enter into force. Moreover, the mechanism for drafting the statute of the Association/Community would essentially remove the government of Kosovo from the process according to a scheme that had been discussed in 2015. However, the Facilitator has now clarified that the discussion on Implementation is only starting now and that, at this point, the parties are invited to offer their views on all of the elements for the implementation annex. Kosovo may wish to hold him to that assurance, avoiding a sense that an initial suggestion put by the Facilitators will be the basis of discussion.

The Conceptual Divide

For the EU, its members and the US, the question of the Association/Community is a relatively simple one. Kosovo seems to have accepted the idea in the 2013 Agreement. Belgrade is insisting on its implementation. The concept of inter-municipal cooperation is one routinely applied in other contexts in Europe. Hence, there is no reason why Kosovo should not be forced into compliance with an obligation which it had, after all, accepted.

It is true that inter-municipal cooperation is a routine instrument to enhance local self-government in Europe. The European Charter of Local Self-Government, which is invoked by all sides and referred to as a guide to implementing the Community/Association, provides in Article 10 (1) that:

Local authorities shall be entitled, in exercising their powers, to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest.

However, this instance is not quite a routine application of good practices in municipal government. As part of the Ahtisaari deal, certain municipalities in Kosovo were in fact constructed in order to accommodate a local ethnic Serb majority and to offer to its members some form of legal and political identity. Going beyond the competences granted to all other municipalities in Kosovo, the majority-ethnic Serb municipalities were granted modestly more pronounced powers of self-government, with a few of them obtaining even more advanced authority (including Mitrovica North, Gračanica and Štrpce on health issues, and Mitrovica on higher-level education).

Kosovo would have been hesitant to offer more powers to some municipalities on the basis of ethnic distinction, apparently preferring one ethnic community to another. This would not be easily compatible with its commitment to the doctrine of the equality of all citizens and all ethnic communities in Kosovo. Still, this concession was made in recognition of the fact that a change in sovereignty was taking place. Special reassurances for the ethnic Serb population could be justified as the supreme authority of Serbia over the territory was replaced with that of Kosovo. This is reasonable and in accordance with European standards and practice.

However, Kosovo consistently rejected the idea of an even deeper ethno-territorial settlement with Serbia. This concept has been thoroughly discredited since the Dayton Agreement on Bosnia and Herzegovina. The creation of Srpska as an ethnic Serb entity has blocked and frustrated the process of post conflict reconciliation in Bosnia ever since the adoption of the Agreement in 1995. Rather than diminishing ethnic division, assigning territory to one ethnic group has deepened division and kept Bosnia in a persistent state of near-collapse.

Hence, Kosovo successfully persuaded the international community to avoid creating an ethnic Serb entity within Kosovo as a further layer of territorially-based governance in Kosovo during the very difficult Rambouillet process. Similarly, the international mediators for the United Nations led by President Martti Ahtisaari abandoned any such concept. Instead of creating territorial units where a dominant group can exercise its rights, the UN wisely opted for a non-territorial and non-discriminatory approach, although some concessions were made to it in the form of enhanced competences for the municipalities created or confirmed as mainly ethnic Serb.

The approach of minimizing territorial concessions protects and preserves members of all non-dominant groups in Kosovo, not just those in certain municipalities, but wherever they live, and not only the members of one particular, privileged non-dominant group living in a particular area. The tool to achieve this effective protection is a very advanced and detailed system of human and minority rights. This approach has now successfully underwritten the potentially delicate majority/minority relations in Kosovo for over a decade and a half.

Serbia, on the other hand, is persisting in its territorial approach. From Kosovo’s perspective, the creation of the Association/Community is yet another attempt to dilute the legal personality of Kosovo as a multi-ethnic state of all its citizens without adverse distinction or discrimination.

Creating one territorial unit in the North, and perhaps also links to titular ethnic territorial units elsewhere, is not really focused on giving rights to minority communities. It does not enhance the integration of communities, not does it give them equal opportunities and a voice in the polity of Kosovo overall. It does not build trust and common links and relations and dependencies under the roof of a common standard of protection for all throughout Kosovo.

In fact, to many in Kosovo, the territorial approach appears to be an extension of the policy of Greater Serbia, which sought territorial compensation for the loss of control over all of the former Yugoslavia in the wake of the dissolution of the SFRY of 1991. The devastating consequences of this policy for millions of non-Serbs are well known.

Hence, the dispute about the Association/Commiunity is not really about the protection of the ethnic Serb community. Kosovo has had no hesitations of any kind to consider yet further steps that could be taken to enhance human and minority rights. The focus of this dispute concerns attempts to retain control over territory for Belgrade outside of the borders of Serbia and, at the same time, to dilute Kosovo’s stability and its domestic jurisdiction.

These concerns are not a reflection of irrational fears on the part of the Kosovo leaders. Despite commitments to the contrary, Serbia has maintained many elements of its ‘parallel administration’ in certain areas of Kosovo, including in the North. It maintains rigorous control over many ethnic Serb entities and their institutions. More generally, it has opposed the attempts by members of local ethnic Serb communities to integrate with their neighbours, insisting on separation instead of a life together in equality.

Backdrop to the 2013 Agreement

It has by now been widely noted that the concept of the Association/Community was in fact initially put forward by the Kosovo side. This was done in the expectation that the Community/Association would go hand in hand with the removal of parallel structures of government, particularly in the North of Kosovo. Once that would be achieved, the risks for Kosovo in taking a territorial approach in this one instance, however modest, would be minimized. Enhanced local self-government, also when exercised in coordination among Serb-majority municipalities, would not threaten the integrity of Kosovo if it really is SELF-government, rather than a venture that is at least in some respects remotely piloted from Belgrade.

Despite the link to the abolition of structures of parallel government in Kosovo, the Association/Community was constructed rather cautiously in the 2013 Agreement. In fact, the term Association of Serb-majority Municipalities, or ASM, now used by Kosovo’s partners, is not quite the correct designation. Through the Agreement of 2013 that introduced the concept (and throughout this essay), the actual term used is ‘Association/Community of Serb Majority Municipalities in Kosovo.’ In fact, and somewhat unusually, the text alternates between ‘Association/Community’ and ‘Community/Association.’ Evidently, even then there was emphasis on the less formal nature of the mechanism for coordination among municipalities, at least for one party. Hence, the term ‘Association’ was not, in fact, accepted as the sole or even the dominant designation of what was being agreed. The subsequent documents on this issue emanating from the Brussels dialogue also refer to Association/Community.

Of course, the structures of parallel administration were not removed from the North. This balance of obligation, restoration of full sovereignty of Kosovo over all its territory, balanced by the establishment of the Association/Community, seems to have been entirely lost from the present demands that Kosovo must now, finally, implement the ‘ASM.’

Content of the Undertaking of 2013

The First Brussels Agreement of 2013 foresaw an association mirroring the establishment of the Association of Kosovo Municipalities. That is an Association of (potentially all) Kosovo Municipalities, regardless of ethnic composition. It has been in existence in Kosovo for a considerable period, in fulfilment of Article 10 of the European Charter on Local Self-Government noted above.

The Association has the legal personality of a not-for profit organization under Kosovo law and was adopted with reference to the Law 04/L-57 on Freedom of Association in Non-Governmental Organizations in Kosovo. Hence, while it includes public bodies (municipalities) as its members, it is not itself a public body. However, it is a civil legal person in the sense of being able to defend its own rights in court, issue contracts and hire staff. Under the terms of the 2013 Agreement, the Association/Community would have that status.

According to the terms of the 2013 Agreement, the Association/Community was also to have institutions mirroring the existing Association of Municipalities in Kosovo open to all municipalities. Hence the Association/Community of Serb Majority Municipalities would have a presiding officer and a deputy, a representative body composed of some members of the participating municipalities, and some form of council.

According to the 2013 Agreement, the function of the Community/Association would be to:

… cooperate in exercising their powers through the Community/Association collectively.

This wording clarifies that the Association/Community does not actually have powers of its own. It is a mechanism of coordination and not an executive body in its own right. Through this mechanism, it is the municipalities exercising THEIR powers collectively.

In short, the Community/Association does not add to the competences already enjoyed by ethnic Serb minority municipalities, nor does it have its own, original powers. Slightly more conceptually, it is also not a body to which the municipalities have transferred some of their powers, which the Association/Community would then exercise on their collective behalf. Even when acting within the framework of the Community/Association, it is the individual municipalities themselves that act, not the Association/Community, which coordinates their cooperation.

According to the 2013 Agreement, the Community/Association is to exercise ‘full overview’ in relation to certain areas of competence enjoyed by the municipalities. These areas of overview are defined as municipal policy, economic development, education, health, and urban and rural planning. Others could be added should the Kosovo government so chose. But in the absence of such an additional transfer of authority to the relevant municipalities, this listing appears to be exclusive.

The wording that assigns to the Community/Association ‘full overview’ in relation to these issue areas has led to diverging interpretations. Clearly, overview is not the same as supervision, i.e., the authority to control the exercise of these competences by the individual municipalities. As already noted, it also cannot refer to a right to exercise the competences of the municipalities on their behalf—the municipalities continue to exercise THEIR competences, although in coordination with one another. The term overview therefore would likely refer to a function of reporting, monitoring and mentoring, with a view to facilitating the coordination of the activities of the participating municipalities.

The agreement also assigns to the Association/Community a seat on the Community Consultative Council and offers to it a representative role in relation to the central authorities.

The 2013 Agreement was followed by a further output of the Brussels dialogue. That document of 2015 added some further competences, including development of the local economy, improving conditions for returning refugees, research, development and representation. That instrument also added further details in relation to the possible administrative structure of the Association/Community, its funding, and modalities of its activities.

The 2015 additional instrument also foresaw that the Statute for the Community/Association would be developed by a so-called management team composed of 4 representatives of the relevant municipalities, with facilitation by the Kosovo Ministry of Local Government. The outcome would then be discussed in the Brussels dialogue and eventually endorsed by a decree. There was also provision for review of the arrangement by the Constitutional Court, confirming that the intention from the outset was to ensure that the Association/Community would function within the existing constitutional order of Kosovo.

The issue of the extent of the functions and powers is definitely disposed of in view of a written assurance that Kosovo is reported to have received at the time of the conclusion of the second agreement of 2015. The EU is rumoured to have given a formal assurance in 2015 that the Association/Community, in accordance with the First Agreement and Kosovo law, would not constitute a third level of government and will not have executive powers.

Legal Status of the 2013 Agreement

Kosovo considers that it is a state. Hence, from its perspective, the 2013 Agreement with Serbia, another state, is an international treaty. Serbia, on the other hand, has a different view on the status of Kosovo. From that perspective, the 2013 Agreement would not necessarily be treated as a treaty subject to international law.

Kosovo ratified the agreement through the adoption of a formal legislative act in its Assembly. In terms of international law, this is difficult to explain. The agreement does not contain a provision on its entry into force, whether by signature or ratification. A handwritten note at the bottom appears to suggest that both sides would inform the facilitators of their acceptance of the agreement, which suggests an informal way of bringing it into force.

It has been proposed that Kosovo could point to the fact that Serbia did not ratify the text as grounds for denying its binding force. However, in the absence of agreement that ratification is required, the presumption is that signature or another act manifesting consent on the part of an authorized high official (President, Prime Minister, Foreign Minister) would have been sufficient to bring it into force.

The argument that the instrument cannot be a treaty because Serbia does not regard Kosovo as a state, and treaties can only be made by states, is also not entirely decisive. States do conclude internationalized agreements even with non-state actors. These may have a binding effect. Moreover, the principle of good faith could suggest that the sides intended to bind themselves through the relevant instrument, even if its legal status of a treaty was left unclear. This is assuming that the two sides did in fact formally accept the agreement, which was apparently initially negotiated ad referendum, i.e., subject to formal acceptance after review in capitals.

That said, it is noteworthy that the international actors seem to have made a distinction between the First Agreement and the document of 2015. Whatever Kosovo’s hesitations, also in relation to the text of 2013, the international actors have consistently insisted on implementation of that instrument, without much reference to the additional text of 2015.

This is consistent with the fact that the agreement of 2013 was formally designated as the ‘First Agreement’ in its title. The document of 2015 appears to be a less formal document, lacking the designation of ‘agreement.’ It was perhaps meant as a work-plan appearing under the title ‘Association/Community of Serb Majority Municipalities in Kosovo—General Principles/Main Elements.’ This has the air of a working document or guide to further practice that may not have quite the same status as the more formal First Agreement.

In any event, Kosovo seems to have taken the view that bringing the 2015 instrument to acquire binding force would require ratification by its Assembly, as in 2013. While not required by virtue of the treaty and international law, it was presumably the wish to generate democratic support and accountability beyond the government for an act of this kind that impelled its move to ratify. No such ratification occurred in relation to the second document of 2015. Instead, there was considerable controversy about it. The Constitutional Court was requested by the President of Kosovo to rule on compliance of the agreement with the constitution. After the Court raised doubts about the constitutionality of some elements of that document, the ratification process was not carried through.

Overall, it seems clear that Kosovo is taken to be bound by the First Agreement. Its own ratification certainly exhibits a sense of legal obligation on its part. Moreover, even if technical doubts could be raised, Kosovo may not wish to carry such an argument too far. After all, Kosovo is a relatively new state, and part of the attribute of statehood is the capacity to enter into international treaties. This includes the obligation of pacta sunt servanda—treaties must be kept. It might not seem appropriate to cast doubts on Kosovo’s reliability in terms of its commitment to obligations it has freely contracted into.

The situation in relation to the agreement of 2015 is different. It would appear to be more in the nature of a technical document which may or may not have been supported by a joint intention to engage in a binding and formal legal obligation. Certainly, the international appreciation of the legal implications on the issue of the Association/Community has focused on the 2013 agreement. Moreover, Kosovo would not have seen itself as bound until it had undergone review by the Constitutional Court and subsequent ratification.

The Association/Community in Kosovo Law

Were it not for the context of the present negotiations and their highly political character, marked by the clash between a territorial and a human/minority rights approach to the issue of the ethnic Serb community in Kosovo, the establishment of a Community or Association would not pose very significant problems in Kosovo law.

The Ahtisaari Comprehensive Proposal, on which Kosovo’s legal identity is based to some extent, expressly provides for the possibility of ‘inter-municipal cooperation.’ Annex III, Article 9, emphasizes that municipalities can ‘cooperate and form partnerships’ with a view to ‘functional cooperation.’

Similarly, the Constitution of Kosovo notes not only the freedom of association of all (Article 44), but also the possibility of ‘inter-municipal cooperation,’ faithfully reflecting the Ahtisaari language (Article 124 (4)).

This has been re-cast in greater detail in the form of the Kosovo Law on Local Self-Government. Again, the right to cooperate and form partnerships for functional cooperation is clearly provided for. According to Article 28:

Municipalities shall have the right to cooperate and form partnerships with other Republic of Kosova municipalities within their areas of competence to carry out functions of mutual interest, based upon the principles of European Charter for Local Self-Government and in accordance with the law.

This facility also applies to Serb-majority municipalities. Indeed, special reference is made to the possibility of forming municipal partnerships also including matters falling within their ‘enhanced competencies.’ (Article 29(1)). These competences were assigned to ethnic Serb-majority municipalities.

However, the intention underpinning these provisions seems to relate to functional cooperation focused on particular projects or individual activities, like a particular project or programmatic activity concerning energy, transport, etc. It does not necessarily seem to cover a broader institutional arrangement to facilitate cooperation in more general terms.

Yet, there is also a separate provision for the establishment of associations. Under the heading of ‘Right of Municipalities to Associate,’ Article 31 provides:

For the protection and promotion of their common interests, municipalities may form and belong to associations that operate in conformity with the law.

However, Article 32 clarifies that such an association would in the main serve to represent the interests of the relevant local self-government bodies vis-à-vis the Kosovo government, to offer technical assistance and other services, such as training and capacity building. This is very much how the general-purpose Association of (all) Municipalities has been conceived.

That said, it appears clear that municipalities can form functional partnerships to pursue certain common tasks that lie within their competencies, and they can also freely form representative associations. Moreover, the broader provisions of the Ahtisaari Annex and the Kosovo Constitution appear to support the establishment of inter-municipal cooperation. Indeed, as already noted above, there already exists a general Association of Kosovo Municipalities which aims to fulfil a number of functions in relation to all municipalities.

This raises the question of whether or not an Association/Community as foreseen in the 2013 Agreement might offend against the overriding obligation of non-discrimination in Kosovo constitutional and international law, given its specific focus on just one ethnic group, in contrast to the general Association of Kosovo Municipalities.

The First Agreement seems to overcome that argument by providing that membership will also be open ‘to any other municipality provided the members are in agreement.’ If this wording is meant to be as written (as opposed to ‘any other Serb majority municipality,’) there would not seem to be an issue of discrimination. All municipalities could conceivably join in, although presumably few will wish to do so.

In fairness, though, it would seem odd to open membership in an Association/Community of Serb-majority municipalities to municipalities where ethnic Serbs are not in the majority. This would leave the possibility of having the Community/Association swamped by non-Serb majority municipalities, robbing it of its purpose to represent interests particular to Serb-majority municipalities.

That leaves two ways in which the problem of possible discrimination could be addressed. The statute could be framed to apply to any two or more municipalities where a national ethnic minority community forms a local majority. This would not exclude any ethnic group. Of course, at present, only the ethnic Serb community forms a local majority in more than one municipality.

However, given the advanced state of the discussion at this point over many years, removing the specific designation of ‘Serb majority municipality’ and replacing it with the concept of ‘any national minority constituting a local majority in more than one municipality’ might be misunderstood. It could be seen as an assault on the principle of special provision for Serb majority municipalities agreed in 2013.

Of course, even an arrangement that is expressly focused on Serb-majority municipalities is not in itself necessarily discriminatory. Discrimination relates to an arbitrary distinction made on the basis of gender, race, religion, ethnic appurtenance, language, etc. A distinction made on the basis of objective circumstances and for a legitimate public purpose would not be discriminatory.

Hence, extending parental leave to mothers, but not fathers, might be seen as discriminatory, as there is no objective ground justifying that distinction. Both are entitled to care for the baby and form a bond in the early phases of its life. On the other hand, extending protection for pregnant women would not be discriminatory on account of leaving out men. Evidently, there is an objective distinction in the situation of both.

Similarly, it is evident that the ethnic Serb-majority municipalities in Kosovo are in a special position for reasons of recent history, demographics throughout Kosovo, ties to a neighbouring state, etc. Hence, particular measures concerning just those municipalities can therefore be justified on objective grounds and are not arbitrary or discriminatory in relation to others.

Overall, therefore, it seems that Kosovo did validly contract into an obligation to establish an Association/Community of Serb-majority municipalities, as foreseen and defined in the 2013 Agreement. The delay in implementing the agreement can be understood in the context of concerns about the underlying agenda pursued by Serbia through a ‘territorial’ approach to minority protection, matched by the failure to remove the parallel structures of government in Kosovo.

In fact, it was rather a mistake on the part of Kosovo to leave this matter unattended for so long. If Kosovo had joined with genuine representatives of its ethnic Serb community and offered a Statute for an Association/Community of Serb-majority municipalities, this contentious issue could have long been resolved. This applies particularly to the period after the Kosovo Constitutional Court laid out useful guidelines on what an Association/Community can look like within the existing constitutional framework.

The Ruling of the Constitutional Court

The question of the legality of the second agreement of 2015 was referred to the Kosovo Constitutional Court by the President of Kosovo when the proposed ratification of that instrument turned out to be highly controversial. In its ruling, the Court concluded that the 2013 Agreement had been lawfully incorporated into the legal order of Kosovo. However, the second instrument of 2015 raised some problematic issues which, in turn, might also affect the interpretation of the first agreement.

First, as was already noted, it was clear that the Community/Association would need to operate in full compliance with the law on non-discrimination. True, the Association/Community would be entitled to reflect the special nature of the member-municipalities, which are characterised by the fact that the national minority of ethnic Serbs in Kosovo is a local majority in respective municipalities. However, the Court also added a helpful reminder in relation to the treatment of individuals within the relevant municipalities.

The Court confirmed that the Association/Community could not be constructed or operate in a way that would exclude or disadvantage non-Serb population in the relevant municipalities. Moreover, if the Association were to engage staff, the principle of equal opportunity of employment would have to apply. Presumably this would also be the case in relation to individual representatives of municipalities selected or elected to serve in the bodies of the Association.

Similarly, the Association would not be able to consider itself the exclusive or only body entitled to represent the interests of ethnic Serbs in Kosovo in relation to the government or other bodies. The human right to freedom of association, guaranteed in Article 44 of the Kosovo Constitution, defines that any group of individuals might form itself into an organization with a view to collectively representing their common interests. Serb-majority municipalities would be free to organize themselves in some other way, just as individual ethnic Serbs might form alternative or additional means of self-organization.

Moreover, the individual municipalities concerned would be free to opt into the Association/Community or to stay outside of it. If they had joined, they would remain free to leave the Association/Community.

With regard to the competences of the Association/Community, it was made clear that only the municipalities themselves, individually, can exercise the functions assigned to them in the constitution and in the law on local self-government. They do not have the authority to transfer these competences to another body like the proposed Community/Association. Hence, the Association/Community would need to be understood as a body that helps to coordinate the exercise of the competences held by the municipalities. It would not be the Association/Community itself that would exercise these competences on behalf of the municipalities.

Consistent with the interpretation of the 2013 Agreement offered above, the Court held that the municipalities act in cooperation, and it is THEY who are acting by exercising THEIR power in coordination.

This view also confirms the finding above on the function of ‘full overview’ as one of cooperation and coordination, and collective review. As the Court noted, the Community/Association is not a body entitled to take executive decisions instead of the municipalities. It assists the municipalities in reaching common views and actions—actions which they then implement individually according to the common plans and strategies that may have been agreed.

The Constitutional Court also confirmed that ‘full overview’ does not imply a right to legally supervise, and establish accountability, for its member municipalities. Under the Constitution, this function is reserved for the government of Kosovo and the Kosovo National Audit Office.

The Court was also hesitant when it comes to a formal right to take legislative initiatives, or to suggest amendments to legislation—tasks formally left to the constitutional organs of Kosovo or public initiatives. However, the Community/Association would be represented on the Minority Consultative Council, which does enjoy certain entitlements in this regard. Moreover, outside of taking formal legislative initiatives in the Kosovo Assembly, nothing would bar it from offering ideas and suggestions for legislative projects, like other citizens’ associations. Moreover, the association would benefit from direct access to the government as a representative body in relation to the ethnic Serb community in Kosovo. A direct contact mechanism for the community with the government is foreseen in the Basic Agreement.

According to the Constitutional Court, the Association/Community must not interfere with the right to funding from the central authorities for individual municipalities. That is to say, the establishment of the Community/Association would not result in reallocating funds intended for the municipalities to the Association/Community. Similarly, the Community/Association would not have the power to decide on the use of the funds allocated to the municipalities. Each municipality would retain the right to use its own budget as provided by law. Of course, the municipalities might decide to grant some funds from their own budget to facilitate the functioning of the Association. They could also commit some of their funds to common projects that result from coordination of their action in the Association. But the fundamental point would remain that these decisions stay with each municipality and are not transferred in whole or in part to the association.

The Constitutional Court confirmed that the Association might have legal capacity to bring actions before the courts. However, it would not do so as a claimed representative of the community of ethnic Serbs in Kosovo. Instead, it would only have access to the Courts where the association makes a claim as a legal subject in its own right, alleging to be the victim of a violation of its own specific civil rights, or its fundamental rights and freedoms guaranteed in the Constitution.

Finally, the Court considered the mechanism proposed for generating the statute. The instrument of 2015 proposed that four designated representatives of ethnic Serb-majority municipalities, in effect mayors appointed by the government of Kosovo, would draft the statute, or basic legal instrument of the Association. The statute could then be approved by an initial founding assembly of the Association before endorsement by way of a decree issued by the government. The Association/Community assembly would retain the right to amend or modify the statute.

The Court found that this suggested process would evidently offend against key provisions of the Constitution, which reserves the authority to draft instruments of a legislative character to constitutionally established institutions, in this case the government. If the government is meant to elevate an initially private, non-governmental instrument, a statute drafted by representatives of the municipalities for the creation of a civil, not-for profit organization, into a legislative act, it would need to be able to exercise control and influence over its drafting. Nevertheless, it would of course be good practice to develop the statute in detailed consultations with the members of the ethnic Serb community, including elected municipal officials. However, according to the Court, the government could not transfer the task of drafting a legislative act wholesale to another body.

The Impact of the Basic Agreement

According to Article 7 of the Basic Agreement, the Parties commit to establishing specific arrangements and guarantees, in accordance with relevant Council of Europe instruments and by drawing on existing European experiences, to ensure an appropriate level of self-management for the Serbian community in Kosovo, and the ability for service provision in specific areas. There is also provision for the possibility of financial support by Serbia and a direct communication channel for the Serbian community in Kosovo. This paragraph is generally seen to relate to the issue previously described as the issue of the Association/Community.

In Article 10, the agreement also requires the parties to confirm their obligation to implement all past dialogue agreements ‘which remain valid and binding.’ When discussing the implementation annex at the forthcoming EU-led normalization dialogue meeting in Ohrid, Serbia is likely to argue that this means full implementation of the 2013 Brussels Agreement which introduced the concept of the Community/Association of Serb-majority Municipalities.

However, Kosovo can now oppose this view. In international law, a subsequent agreement concluded by the same parties on the same subject prevails over the earlier one (lex posterior derogat legi anterior). While the new Basic Agreement is not yet in force, it will enter into force once the implementation annex has been agreed as part of the overall package. At that point, the obligations incumbent upon the Parties must be to implement previous agreements, including the text of 2013, consistently with the new agreement of 2023.

This does not mean that the new Basic Agreement displaces the First Agreement of 2013 altogether. However, that latter text now has to be understood in the light of Article 7 of the Basic Agreement, which will determine how the previous obligations relating to the Community/Association are to be interpreted and implemented.

Article 7, or indeed the entire Basic Agreement, does not mention the term Association/Community of Serb-majority municipalities at all, not with one single word. That concept has now been modified by what sounds like the more modest reference to ‘self-management’ for the Serbian community in Kosovo. In the final version of Article 7, the term ‘self-management’ replaces the words ‘self-government’ in the initial proposal for the Basic Agreement, emphasizing the more modest functions that are envisaged.

Article 7 is also helpful inasmuch as it clarifies that the function of coordination among ethnic Serb-majority municipalities concerns mainly service delivery. That is to say, the focus of coordination is meant to be provision of facilities and services within the member municipalities, rather than broader politics going beyond the more technical competences assigned to the municipalities.

It has been suggested that the drafting of the statute might after all be undertaken by the so-called management team foreseen in 2015. This would include representatives from the four municipalities in question, at the time the mayors or their delegates, upon approval by the Kosovo government.

It is unlikely that this body, foreseen for a range of implementation tasks under the structure established in 2015, could now fulfil that function. In fact, the body foreseen in 2015 was meant to present the statute within four months to the High-level Brussels dialogue. By now, nearly a decade later, the principal members foreseen for that body are no longer in post and the situation has moved on. In fact, the office holders in the relevant municipalities have resigned their positions. This would leave the drafting process moribund. If an initial draft for a statute was generated at the time, it was not presented in the dialogue and will by now have been overtaken by time.

Moreover, the Constitutional Court ruling casts doubt on the legality of the drafting mechanism for the statute as provided in 2015. While a private association may well devise its own statute, the situation differs where that instrument is meant to gain approval and endorsement, and an official status, by way of a governmental decree. The view of the Constitutional Court appears to be that the government cannot leave what would amount to drafting its own decree, or the substance to which its decree would relate, to others.

It is Time for a Pro-Active Approach

It is rather unfortunate that the question of the Association/Community has been given such enormous prominence. This rather disguises the fact that in the end it is Serbia which is unwilling to play a constructive role in what is meant to be a ‘recognition-centred’ negotiation. In fact, there is a risk that the EU facilitators, pushed along by the apparent US position, are painting themselves into a corner they may find difficult to get out of. They might find that their insistence on a particular form of the Association/Community, and of the mechanism for its drafting, may lead the negotiations to a stalemate. For, as was noted above, the debate about the Association/Community is underpinned by a conceptual divide. This is the territorial approach to ethno-political conflicts, and the more recent emphasis on integrative steps.

Kosovo is unlikely ever to buy into a strong territorial approach to minority governance. This is in part because such an approach has been proven dangerous and ineffective in other, similar circumstances. This is also in view of the fact that a territorial approach appears to coincide with Serbia’s agenda of retaining control over significant parts of Kosovo. This would be facilitated by granting mainly ethnic-Serb populated areas their own, singular legal identity, powers and institutions, at a time when these might well remain prone to remote steering from Belgrade. Belgrade’s failure to terminate its parallel structures of government in Kosovo may have confirmed this expectation.

The hope on the part of the new Kosovo government since it came into power seems to have been that it could roll back insistence on what its international partners call the ‘ASM,’ even if this meant undoing the entire set of achievements of the Brussels dialogue thus far. This hope has clearly not been fulfilled. Pressure to move on this front has, if anything, intensified. What Kosovo should have done on its own after 2015—implement the Association/Community according to its own vision and according to the Constitutional Court ruling in a way that avoids a pronounced territorial dimension—has now moved to the heart of an international process where a great deal is at stake.

That said, the unwillingness of the present government to even engage with the ‘ASM’ issue has yielded some, perhaps surprisingly positive results. As noted above, the Basic Agreement does not itself mention the Association/Community. Previous agreements remain relevant, but must be interpreted according to the wording now adopted in Article 7 of the Basic Agreement. And, crucially, in order to help persuade Kosovo to accept the Basic Agreement, very important commitments were made by the EU and the major states supporting the process.

First, Mr Lajčák formally assured Kosovo Prime Minister Albin Kurti that the details of the Association/Community would be ‘drafted by you and agreed by you. You won’t write something you don’t agree with.’ [27 January 2023, https://www.euractiv.com/section/politics/news/eu-envoy-lajcak-internationals-wont-repeat-balkan-mistakes-in-kosovo/.] Similarly, the US has emphasized that it would be ‘for Kosovo to provide its vision for this community.’ [US State Department Special Advisor Derek Chollet and Special Envoy DAS Gabriel Escobar, 30 January 2023, https://www.koha.net/veshtrime/363524/the-time-for-establishing-the-asm-is-now/

Kosovo can insist on this commitment, should it be faced with the suggestion that the defunct mechanism for drafting the Statute of 2015 can somehow magically be revived. On the other hand, it will be important to ensure full and meaningful consultation with members of the ethnic Serb community and their representatives in the process. Clearly, the statute implementing Article 7 cannot be imposed on that community. It needs to be developed in a consensual process.

Moreover, both the EU and the US have repeatedly confirmed that they now understand the risk of a territorial approach to managing ethnic relations, confirming that the lessons of Bosnia have been learnt in this respect. ‘We strongly oppose the creation of anything similar to Republic Srpska ethnic community in Bosnia and Herzegovina.’ [Id.] Kosovo can build on the understanding that Article 7 is not about creating a single territorial entity that can govern itself outside of the legal and constitutional system of Kosovo. Instead, it is a means to providing appropriate means of minority governance to the members of the ethnic Serb community in Kosovo also by way of functional cooperation of municipalities.

Indeed, the assurance has consistently been, now in Article 7, that the Association/Community will ‘not add a new level of executive and legislative power to the government of Kosovo.’ Rather, it would be a matter of exercising ‘more effectively the powers they already have.’ Again, the emphasis is on coordination of cooperation. That is to say, Article 7 is not meant to force Kosovo into accepting a new layer of government between the municipalities and the government of Kosovo. Moreover, Kosovo is said to have an iron-clad commitment from the EU, given already in 2015, to the effect that this will not constitute a third level of government. That commitment reportedly also adds that there will be no executive powers for what was previously called the Association/Community, and now is the mechanism to implement Article 7. That should simply end the discussion on this point.

Further, both the EU and the US have spoken with one voice when also assuring Kosovo that ‘the Community would be a structure for municipalities with an ethnic Serb-majority population to coordinate issues and services, such as education health care, urban and rural planning and local economic development.’ This is now also formally reflected in the change in Article 7 from ‘self-government’ to mere ‘self-management.’ Moreover, Article 7 makes it expressly clear that the mandate of the mechanism for functional cooperation is focused on coordination of service delivery by the municipalities. It is not a body with a broader political remit.

Last year, Kosovo’s international partners appeared to suggest that Kosovo might have to change its Constitution in order to implement the 2013 Agreement. Again, before acceptance of the text of the Basic Agreement, Kosovo has now been repeatedly assured that the statute would operate within its existing constitutional order and fully in accord with the requirements of its Constitutional Court. Even as recently as last week, in an interview immediately after his visit to Pristina, Mr Lajčák has expressly confirmed again that Article 7 will be implemented fully in line with Kosovo’s Constitution and with the pronouncements of its Constitutional Court. [https://www.youtube.com/watch?v=Q-vo2SJO2M8.]

Consistently with the assurances it has received, Kosovo can now insist that drafting the statute will be the task of its government, although in a process of deep consultation with the members of its ethnic Serb community.

As a first step, it can and should offer its own vision for the implementation annex in some detail. That vision would not need to refer to the ‘ASM.’ Instead, it can address ‘Implementation of Article 7(a) of the Basic Agreement.’ And it can do so in terms of the wording of Article 7, rather than the language of 2013.

Moreover, Kosovo can point to the quite specific assurances it has been given over time. Within those confines, it can easily develop and propose a mechanism for the implementation of Article 7 that is part of Kosovo’s accommodation of its diverse population, and not a territorial settlement. This includes the possibility of functional cooperation among municipalities in line with the Kosovo Constitution and is, in fact, already foreseen in its existing legislation.

Offering this facility with a focus on the ethnic Serb community is not discrimination. It is only the ethnic Serb community that forms a majority in more than one municipality. If Kosovo facilitates the constitutionally guaranteed opportunity for such municipalities to engage in functional cooperation, this is a constitutionally mandated task. Moreover, as the Constitutional Court has already given its valuable opinion, Kosovo can lead the effort to devise a statute that allows for meaningful self-management entirely within the confines of the Constitution of Kosovo.

Overall, therefore, Kosovo now has the opportunity, perhaps for a fairly brief period of time of perhaps only days or weeks, to take the commitments it has received from its partners to the bank, as it were, and offer its vision for the implementation of Article 7 on that basis. This needs to include a genuine and credible vision for functional cooperation among municipalities, as Kosovo law already provides.

History tells us that it is far better for Kosovo to shape its own obligations actively. An attitude of objection without offering constructive alternatives has in the past had a counter-productive result. This will lead others to shape the outcomes in negotiations—outcomes they will in the end seek to impose upon Kosovo. At that point, Kosovo may no longer claim the benefits that would have been available had it been able to agree a full package of a settlement, shaped through its own inputs.

Marc Weller is Professor of International Law and International Constitutional Studies in the University of Cambridge and the author of Contested Statehood: Kosovo’s Struggle for Independence (Oxford University Press and Koha Press). He was invited by President Ibrahim Rugova to act as an advisor for Kosovo in the Rambouillet negotiations and also served in the Ahtisaari process that led to the declaration of independence. The views expressed are his own alone and not attributable to any government or institution.