Gëzim Visoka (Dublin City University)

In recent months, the EU and US have diplomatically pressed Kosovo and Serbia to accept a proposal for the further normalization of bilateral relations. Although this agreement has been praised by the EU and its member states, the US, the UN Secretary-General, and others, as a crucial step towards normalizing relations and promoting regional stability, the negotiations that led to it and the reactions that followed speak more to a fresh, troublesome dispute than to a lasting resolution.

Kosovo and Serbia have not directly resolved their conflict since the 1990s. It has always required third-party mediation or intervention. While Serbia has refused to accept or sign any of the internationally-sponsored peace settlements in all three historic peacemaking initiatives (Rambouillet 1999, Vienna 2007, and Brussels 2013), Kosovo has done so. These pivotal moments have paved the way for a discordant peace and normalization process that has led to mutual mistrust and selective implementation of such peace (dis)agreements.

Following years of deadlock and heightened tensions during 2022, the EU and US forced upon Kosovo and Serbia the ‘Agreement on the path to normalisation between Kosovo and Serbia’, which was indirectly accepted and announced by the EU’s High Representative on 27 February 2023. This Agreement contains 11 articles and resembles the 1972 basic treaty between two Germanies.

This Agreement in many aspects represents an advancement from the 2013 agreement, but it falls short of fully normalising the relations between Kosovo and Serbia. It represents a progression in relations respecting how Serbia and Kosovo perceive one another, but also a regression as it solidifies differences on the question of Kosovo’s status and deepens Serbia’s influence in the country. Most importantly, the ambiguous formation of provisions and the failure of parties to agree on a more detailed implementation plan is unlikely to lead to a smooth normalization of relations.

The Agreement’s preambulatory clauses, 11 articles, and implementation annex contain dubious provisions and references which leave parties to interpret the agreement on their terms and thus open space for contestation, non-implementation, and new layers of disagreement.

The term “contracting parties” is used in the preambulatory clauses, which makes it unclear whether the parties are states or other legal entities. On the other hand, it leaves room for this agreement to be interpreted as a contractual agreement, making it enforceable against both parties. The reference to the parties’ resolve to “overcome the legacies of the past” is another contentious one because in Kosovo, it is understood to mean avoiding rather than confronting the past. There is also mention of “the inviolability of frontiers, respect for territorial integrity, and sovereignty,” which leaves room for interpretation on the part of the parties as to whether this refers to both Serbia’s claim to Kosovo and their own unique attributes of sovereign statehood. Finally, it is not clear from the mention of protecting national minorities whether there will be reciprocity and that this agreement will also benefit the marginalized Albanians in the southern part of Serbia.

The Articles 1 through 5 and Article 8 can be interpreted as favouring Kosovo because they imply acceptance of Kosovo’s status as a separate state. Article 1 makes mention of the emergence of normal neighbourly relations, the equality of rights, and the mutual recognition of legal documents and national symbols. The UN Charter is referenced in Article 2 along with its objectives and tenets, including “sovereign equality of all States, respect for their independence, autonomy, and territorial integrity, the right of self-determination, the protection of human rights, and non-discrimination”. Article 3 makes reference to non-aggression (refraining from the use of force or the threat of using it) and the peaceful resolution of disputes, which is crucial for preventing conflicts. In particular, Article 4 states that Serbia will not object to Kosovo’s membership in any international organizations and that “neither of the two may act on behalf of the other in the international sphere.” According to Article 5, “neither Party will block, nor encourage others to block, the other Party’s progress in their respective EU path based on their own merits.” Finally, Article 8 states that “the Parties shall exchange Permanent Missions. They must be established at the location of the respective Government”. Up to here, these provisions of the agreement agree Kosovo’s desired end, which is mutual recognition and normalization of relations with Serbia as two sperate and sovereign states. It is also possible to interpret the clauses as an implicit and de facto recognition of Kosovo’s independence and sovereign statehood because they are typical provisions of inter-state normalization of relations.

However, Article 6 contradicts itself by stating that although this agreement “constitutes an important step of normalization,” it is not yet “a legally binding agreement on comprehensive normalization of their relations.”. This gives the parties the chance to contest the agreement’s validity and bindingness. Serbia has demonstrated a lack of good faith in the implementation of the agreement by refusing to sign the document since it was first proposed, claiming that doing so would amount to recognition of Kosovo’s unique international status.

The establishment of a distinct political organization for Serbs in Kosovo called “The Association of Serb-Majority Municipalities” (ASM) and a special status for the Serbian Orthodox Church are both demands addressed in Articles 7 and 10, which are primarily seen as favourable to Serbia. According to Article 7, both parties agree to put in place “specific arrangements and guarantees. [for]…the Serbian community in Kosovo to be able to manage its own affairs appropriately and to be able to provide services where necessary. Although the Government of Kosovo interprets “self-management” as avoiding autonomy for local Serbs, its ambiguous and broad definition is still disputed and problematic. Since they were first proposed, these provisions have remained the most contentious – at least for Kosovo – because they call for greater autonomy for Kosovo Serbs and are seen as additional concessions to those already made in the Ahtisaari Proposal of 2008. Kosovo has been hesitant to accept new agreements for greater autonomy for local Serbs, short of mutual recognition with Serbia, out of concern that doing so would make Kosovo a dysfunctional state, allow Serbia to formally interfere in the political system of Kosovo, and undermine the country’s hard-won independence. The clauses pertaining to the ASM and the Serbian Orthodox Church in Kosovo were carried over from earlier agreements, and they have since grown to be a point of contention between Kosovo and Serbia, the international community, and the government of Kosovo as well as the opposition parties in the country.

While the provisions agreed to via a third party (Josep Borrell, the EU HR/VP) on February 27, 2023, seem to be the best arrangement the EU and US could impose on the parties, the parties’ inability to come to an agreement on a precise and thorough implementation plan (as required by Article 11) sends a depressing message about the viability of this new agreement. On March 16, 2023, the EU declared that Kosovo and Serbia had reached an agreement in Ohrid regarding the implementation annex. Despite the annex’s ambiguity and lack of a clear implementation roadmap, it outlines actions the EU will take to link the 27 February agreement to both countries’ EU accession processes and establish a joint monitoring committee with the EU as its chair. However, since it provides that “all Articles will be implemented independently of each other” and that “Kosovo and Serbia agree not to block implementation of any of the Articles”, it lays out the foundations for its very own failure by permitting a chaotic sequence for the implementation of the provisions and selective pressure on parties. For example, while the problematic Article 7 on the ASM is mentioned in the annex only briefly, Articles 1 through 5 and 8—which are crucial for Kosovo—are not given the same urgency. In particular, since the implementation of Articles 1-5 concern Kosovo’s international recognition and Euro-Atlantic integration, the EU should have endeavoured to develop a unified position on Kosovo’s independence and remove the destructive veto set by Cyprus, Greece, Slovakia, Spain, and Romania on Kosovo’s EU and NATO integration process.

Accordingly, it is unlikely that the Agreement on the path to normalization between Kosovo and Serbia will result in a significant normalization of relations between Kosovo and Serbia because it lacks the crucial political, legal, and operational clarity for transforming the current stalemate. Although the 27 February accord resembles many aspects of de facto recognition of Kosovo’s independence and may be seen as an improvement from the 2013 Brussels Agreement, I believe it falls short. The implementation of each provision of the agreement, including those listed in the annex, will necessitate additional negotiations and concessions, which are likely to be blocked by parties and subsequently undermine their willingness to implement other aspects, barring explicit and mutual recognition. Without explicit clarity on the question of mutual recognition there won’t be a full and comprehensive normalization of relations between Kosovo and Serbia because recognition is the essential component that determines the quality of relationship, trust, and willingness to make concessions.

Thus, the deal is not really about establishing a new relationship between Kosovo and Serbia that is based on mutual recognition, equality, and reciprocity. Instead, it is a (dis)agreement to ensure a more stable stalemate. We are still a long way from achieving the desired level of normalcy in bilateral relations between two states as is the case with the other Western Balkan countries. This agreement most likely will guarantee an ambiguous peace for at least another ten years while the right conditions are being created for other favourable arrangements for the parties. In the worst case, it might result in a negative peace that stops the fighting but has the potential to stymie and even reverse Kosovo’s efforts to consolidate its sovereignty both internally and externally. Both parties have already begun to interpret the agreement in their own ways, which suggests that in the upcoming months (and years!), there will probably be more disputes than agreements.

Finally, the deal certainly represents at least for now an abandonment of the EU’s mission to reach a comprehensive and legally binding agreement, and US’s pledge for an agreement centred on mutual recognition. But one gets the impression that the US’s and EU’s determination to reach a flawed agreement reflects their desire to appear as credible peacemakers more than to actually resolve concerns about how to create a deal that would bring about lasting peace and settle the many unresolved differences between the two states.

The experience of Ukraine has demonstrated that the international peacemaking centered on model of equating the victim and perpetrator state, the logic of “both-side-ism” (equal responsibility and impartial mediation), and the lack of firm decisions are unable to bring durable peace and are more likely to result in frozen conflicts and hybrid forms of peace that endanger regional and international peace. If we translate this to the case of the Serbia-Kosovo dispute, without putting mutual recognition in the centre it is unlikely that there will be inter-state and societal reconciliation. If the EU and US would be consistent in their approaches to conflict resolution, we would perhaps see a different and better outcome in the Kosovo-Serbia dispute.

 

Dr Gëzim Visoka is a member of the DCU Brexit Institute and an Associate Professor of Peace and Conflict studies at Dublin City University’s School of Law and Government. Dr. Visoka is a well-known authority on the Western Balkans and the author of numerous books on peacebuilding and state recognition.

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