More on the European agreement, Waiting for March 18/24

Dragutin Nenezić
Dragutin Nenezić je pravnik iz Beograda koji više od deset godina radi na Kosovu i Metohiji. Tokom rada u advokaturi, savetovao je i zastupao stranke u privatizacionim i imovinskim sporovima pred prištinskim sudovima, i vremenom se profilisao kao ekspert za pitanje imovine na Kosovu i Metohiji, u kom svojstvu je učestvovao u različitim forumima i inicijativama. Trenutno radi kao konsultant u oblasti infrastrukture, energetike i ekologije, kao i javnih politika/FOTO: KoSSev

By Dragutin Nenezic

Some things about the European agreement have become clearer since last Monday, and I received plenty of comments, criticisms and questions, therefore, I decided to attempt to paint a clearer picture compared to my previous analysis, as well as to answer some questions that were asked. This article is a little longer than normal, but I believe that this topic cannot and should not be dealt with lightly.

For those who like short and quick answers:1) This agreement, which is otherwise poor in content, will be carried outwith or without a signature; it was basically accepted, but in order for it to be implemented in its entirety, an implementation plan must also be accepted, which will not change it for the better.2) As a result of Pristina’s implementation, an overall bad deal has the potential to be even worse for Serbs, the Serbian Orthodox Church (SOC) and property in Kosovo, which other constitute ‘red lines’ for any policy on Kosovo. 3) Should the agreement be implemented as envisaged on paper, Serbia will permanently renounce its sovereignty over Kosovo and Metohija in the international sphere – the harmful consequences of which willbecome clear only later. 4)Finally, sooner or later, we will have to face the consequences of the discrepancy between the relationship toward Kosovo and Metohija at the level of the Constitution of the Republic of Serbia, Resolution 1244 of the UN Security Council and the international sphere.

Regarding the signature

Criticisms of my previous text mostly boil down to a single point:Without a signature, the European Agreement is not valid. To prove its validity, I will posit several arguments, noting that just because something is a bit unusual does not mean that it is not possible.

Firstly, I would like to draw my critics’ attention to the international legal theory before the Vienna Convention, the UN handbook for concluding multilateral agreements based on the Vienna Convention, and the commentary on the Vienna Convention, as well as the position of some domestic theorists.

While taking into account remarks regarding the Vienna Convention (about which a lot of useful information can be foundmy previous analysis), and the fact that the European agreement is not multilateral (and perhaps it is), I think it is undisputable that it can be valid even without the formal act of signing. Whoever wants to believe otherwise – let them, and I sincerely want the future to prove me wrong, and I gladly accept that in advance. Until then, I will continue to believe that everything that has legal consequences is binding, regardless of whether it is signed and/or ratified, and that in this sense it is superfluous to talk about „political agreements.”

Secondly, we also heard the position of the EU that signing was not envisaged, so as a completely legitimate possibility it can be predicted that, once and if the agreement is completed with an implementation road map (more on that in the ensuing sections), the European Council as the competent mediator will only state in its act that the agreement is in force, precisely on March 24th.

I would remind readers that the last „agreement“ on license plates was also accepted without a formal signature. I don’t remember that that agreement was discussed in the same manner that this one is, but instead, press releases that were issued at theseem to have been given magical powers, partly by those same structures that now insist on signatures.

Finally, if the signing takes place on March 18th or March 24th, only then will it be pointless to comment on these criticisms.

On the effect of the agreement at different levels

Therefore, whether signed or not, the agreement will have a legal effect. For me, that is indubitable. What is interesting is that the effect is somewhat limited.

Namely, on the internal level, and this will be discussed in depth below, it seems, for political reasons, that nothing will change. The Constitution of the Republic of Serbia is still valid, as per which, Kosovo and Metohija is treated as an integral part of the Republic of Serbia, at least on paper for internal use. The same applies to Resolution 1244 of the UN Security Council, which continues to be valid until it is replaced by a new one (which, as I mentioned below, cannot be expected in the near future for several reasons).

Somewhere in between, the agreement’s true effects will become apparent, which is that it will primarily impact Belgrade and Pristina’s separate engagement at the international level, at least in areas not related or impacted by the UN. This will, for example, include the recognition from some of the five EU member states that currently do not recognize Kosovo, or Kosovo’s membership in the Council of Europe (again, more on that below).
The essential problem of this inconsistency lies in that it cannot last forever, especially if we take into account that, if Belgrade decides to implement the agreement, it will effectively stop applying its institutional regulations on the territory of Kosovo and Metohija. Thus, the legal order of the Republic of Serbia will be permanently violated.

The sequence of steps toward the full implementation of the European agreement

In order for that effect to occur, the parties must agree on implementation, which is expected to take place in Ohrid on March 18th(I’ll discuss the symbolism of Ohrid some other time).

Some unofficial versions of the implementation document have cropped up, the credibility of which I cannot determine, but I am inclined to believe in it, given previous experience with similarly unofficial versions of the agreement. If that is the case, it seems that it is unlikely that something spectacular can be foreseen in that document outside of the text of the agreement itself, and I would honestly be surprised if that were to happen.

However, the fact remains that, considering that this document is an integral part of the agreement, the final agreement will not be complete if that document is not, for any reason, agreed upon. In that case, there will be no agreement. The practical consequences of such a move may mean that the entire agreement is going to be rejected if the implementation agreement is rejected. On the other hand, it is highly likely that the implementation agreement will be offered to the parties on a take-it-or-leave-it basis.

Furthermore, if an agreement is reached, it is certain that there will have to be a return to the institutions. The functioning of the institutions is based on the Brussels agreements, which must be implemented according to the European agreement. Therefore, the European agreement rests on the Brussels agreement, which became obsolete after the withdrawal from the institutions, so it is necessary to bring it back from the dead as part of the implementation. How and in what way, I cannot write about at this point.

In the end, what comes is the implementation of what was agreed. Considering the current practice where Belgrade implements everything without exception, and Pristina only selectively, as well as the lack of sanctions built into the European agreement for non-compliance (by which it does not differ from the Brussels agreement), I don’t think there’s much cause for optimism.

It is very possible to imagine a situation in which Pristina continues to occupy northern Kosovo, arresting and persecuting Serbs (we have a situation in Strpce where Serbs are now being prosecuted just for participating in protests, which certainly awaits the Serbs in northern Kosovo as well), thereby forcing Serbs to move away, and Belgrade sits with its hands tied because it respects the European agreement. There is a clear parallel with the Brussels agreement – for our side, the legal consequences are permanent until the subjects of the agreement (Serbs from Kosovo and Metohija) take matters into their own hands. What’s worse is that there is no sign of amnesty, which was included in the Brussels agreement.

Possible problems

The position of the Serbs is one of the two possible problems with the agreement on implementation if one follows the debate in the Pristina parliament (which cannot be seen anywhere among the Serb public), as well as the texts from Pristina and Belgrade’s (I have no information whether the gentleman’s arrangement is still valid) advisors.

The way in which the European agreement approaches something that we all interpret as being the ASM, is such that it can very easily happen for the implementation to lead to an absolutely dysfunctional mechanism that will not guarantee any protection to Serbs. The use of terms that mean nothing (self-determination) is obviously not accidental in the text of the Pristina adviser, and we should expect maximum malice and bad faith in negotiations and implementation from that side.

Rejoicing at the formation of some kind of ASM, which may not even be called that, and which most certainly will not have executive powers, would mean celebrating our own defeat, except for the children of communism who are already rejoicing, possibly because of the return of self-governance.

The provision of the agreement on the SOC is equally problematic. Although it is formulated better than the one about the ASM, based on the statements of Pristina officials, it appears that at the implementation level, they do not fundamentally desire to improve the position of the SOC, but to replace Annex 5 of theAhtisaariplan with a law, thereby fulfilling the obligation of formalization from the agreement. At the moment, the only barrier to such behavior is that the Serb MPs, without whose vote the law cannot be adopted, are not participating in the work of the assembly, and I hope it will remain this way.

Internal dimension – the constitutionality of the European agreement and „red lines“

These two issues lead us to the inner dimension, that is, the relationship of the European agreement toward the constitutions of each of the sides, as well as the declarative „red lines“.

As far as Pristina is concerned, I think the situation will repeat itself, as was the case with the Brussels agreement – It will be ratified in the assembly as an international agreement. It is possible that it will be challenged before the constitutional court. It is an indicator of a consistent policy, whose „red line“ lies in forcing one’s own statehood. In this sense, the European agreement is a step forward for that policy, but not a full victory – only recognition would mean a full victory.

This is why this agreement is not generally met with enthusiasm in Pristina, as for the majority of their politicians, anything but recognition is not enough. However, after the first recognition of one of the five EU member states, or admission to the Council of Europe, I think those cold reactions will melt away like a footnote/asterisk next to Kosovo.

When it comes to Belgrade, I’m not so sure there is a consistent policy in that regard. I wouldn’t be surprised if via creative interpretation of the law, as with the Brussels agreement, the assembly is avoided to a greater or lesser extent (so there is consistency there). The Constitutional Court has already declared itself incompetent for the Brussels agreement, so even though there are significant differences – above all on the recognition of Pristina’s statehood, while the self-deprivation of Belgrade’s sovereignty is again consistent – I believe that they will do the same here, even though the doctrine of a political issue can hardly be defended here since it is prima facie clear that it is an international agreement.

Finally, as for our „red lines,“ they are set in such a way that they may never be crossed. Objectively, it will be very difficult for Pristina to enter the UN, not because of our objections, but because of international circumstances (paralysis due to the war in Ukraine, the attitude of Russia and/or China, etc.). Also, I still believe that it cannot be disputed that full normalization implies recognition, but it seems to me that there will not be a terrible amount of pressure on Belgradeonce the European agreement is accepted. The agreement on normalization is a condition for Serbia’s membership in the EU, but that seems impossible today, so that agreement, and therefore recognition, may never come to be.

Due to all of the above-mentioned factors, I believe that the real red lines must be the rights of Serbs (to life, safety, return, and their own identity…), the position of the SOC, and the protection of property (of individuals and legal entities, but also of the state). Although the European agreement deals with only one of these points, I am not sure that, as things stand at the moment, its implementation will improve anything in this sense without the drastic intervention of an international factor. For this reason, I think that Belgrade’s current policy on Kosovo can only be evaluated in relation to these three things, rather than declarative „red lines“, which actually apply to the Kosovo policy of any government.

Unfortunately, in order to evaluate this agreement in that way, it must first be accepted and implemented, and this is the main pitfall of this approach, as after that, it would be difficult for some things to go back without a major rebellion by the Serbs.

What will happen after the agreement?

As I previously wrote, Pristina can easily join the Council of Europe after this, which Kurti announced (allegedly with the positive opinion of the Council of Europe itself), which passed relatively unnoticed by the public here. As for the UN, as I wrote earlier and stated above, it will hardly be possible for Kosovo to join before the end of the war in Ukraine, and when it comes to NATO, I still think there is no need as long as NATO is present in Kosovo.

With all that, they will certainly slide deeper and deeper into the police and paramilitary dictatorship, where members of the illegal security forces draw the faces of (according to Serbian official sources) terrorists and bandits on their bodies, take pictures with terrorist fetishism, etc. and all this while seizing the land from the Serb hosts in absolutely illegal quasi-procedures. In such a territory, the Serbs have no perspective.

As far as Belgrade is concerned, its fate also depends on whether it agrees to such an agreement in full, as well as how it will be implemented in Kosovo and Metohija, and in the internal legal framework. Any consent to disenfranchisement according to the plan of this agreement will necessarily affect the lack of rights on all other plans according to the principle of merged courts.

If, on the other hand, these things are kept in some kind of provisional, unfinished fashion for political reasons, such a situation will spread in all spheres of life according to the same principle. Kosovo and Metohija are key identity issues for Serbia and the Serb people, whether one likes it or not, and the attitude toward them will inevitably fundamentally affect a number of other social issues.

About the close parallels: Ahtisaari and Ischinger

It’ll be interesting to take a brief look at the fact that the European agreement is essentially a cocktail of Ahtisaari’s plan and Ischinger’s proposal. Absolutely nothing in it is new, and it is regrettable that the political/collective West, whatever one likes to call it, has not thought of anything innovativeover the past fifteen years. Worse still, that there was no desire to ponder something new. Such a relationship perfectly reflects their real intentions toward us, that is, their perception of us as a people.

Additional historical parallels: Vance-Owen plan, Z-4, and Rambouillet

Finally, I would like to refer to some historical parallels that can often be heard in public.
Some say that this must be accepted now so that it is not imposed later by force (which was the case with Rambouillet), and I think that this is a good parallel because it probably reveals the motivation of both sides – both want to appear constructive (like the Albanians in Rambouillet), and no one wants to refuse something (like Serbia in Rambouillet).

However, unlike Rambouillet, there is no threat of aggression and bombing here.
Others, on the other hand, call for this to be accepted on time, so that it is not too late, as was the case with the Z-4 plan. However, with the Z-4 plan, it was clear that the Croatian side would never implement it, and that it was preparing for operation Storm. In this sense, it may be possible to draw some parallels with regard to the militarization of Pristina.

Ultimately, what I would personally prefer is to see this suffer the fate of the Vance-Owen plan – to be rejected, followed by the equivalent of Dayton – as it is a positive example of how not every subsequent offer is worse than the last. Especially if time is on our side.

The opinions and views expressed represent the views and opinions of the author and do not necessarily reflect the views of the editorial office or donors.


Preuzimanje i objavljivanje tekstova sa portala KoSSev nije dozvoljeno bez navođenja izvora. Hvala na poštovanju etike novinarske profesije.