Non-agreement or why it takes (at least) two to reach an agreement

Foto: FPN

By Milos Hrnjaz

On September 4th, 2020, three men wearing dark suits signed four documents in the Oval Office of the White House. The President of the Republic of Serbia signed a 16-point document entitled Economic Normalization (Agreement on the Economic Normalization). The Prime Minister of Kosovo signed a very similar document, with the same title, where the first fifteen points are identical, and where only the last – the sixteenth point – differs. The President of the USA, Donald Trump signed two rather short documents, one of which was addressed to the Prime Minister of Kosovo, and the other to the President of Serbia.

As a rule, our actions and decisions lead to certain consequences. In that case, what are the international law consequences, but also the foreign policy consequences of the three men in dark suits deciding to sign four documents in the White House? There are (practically) no consequences when it comes to international law, while consequences for foreign policy are potentially grave, but also very unpredictable.

As far as international law is concerned, four options are possible. The first is that a bilateral agreement was reached between Serbia and the US and between Kosovo and the US. After all, the President of Serbia informed us that, thanks to the explicit rejection of the representatives of Serbia, the intention to sign a direct agreement with the representatives of Pristina was thwarted and that is why a decision was made on the two mentioned bilateral agreements. He did, after all, sign a paper and, at the same time, the President of the United States also signed a paper, albeit with extremely different content. Therefore, questioning whether that means that an agreement was signed between these two countries is completely valid.

The trouble, however, is that the Special Envoy of the US president for Kosovo and Serbia, Richard Grenell said at a press conference held after the signing of the AEN that the USA did not become a foreign contracting party with Serbia or Kosovo on September 4th.

The first question posed in connection with this development is whether an international agreement can be made if two people in dark suits do not sign the same paper? Theoretically: it can. Is that the case here? It is not. Why?

There is an option in international law – provided for in Article 13 of the Vienna Convention on the Law of Treaties (VCLT) – to express the consent to be bound by a treaty through an exchange of instruments. It may be that this is why the President of Serbia, after Grenell’s statement, told us that we „exchanged letters.“ The key condition, however, for the agreement to be made by the exchange of instruments, is for both parties to agree to it. In this case, after Grenell’s statement, it is pretty obvious that this was not the case here. Also, the procedure for the exchange of instruments defined in Article 13 of the VCLT does not correspond to what we observed in the White House, and the paper signed by Trump and given to the President of Serbia does not actually contain any obligations of the United States towards Serbia.

Therefore, an agreement between Serbia and the United States did not take place. Only a non-agreement did.

Another international law possibility is that Serbia had reached an agreement with Kosovo. Although the number of comments arguing that this was not the case is on the rise (see here, here and here), in the previous days, serious analyzes appeared in the media claiming that the AEN is actually an agreement that binds Serbia and Kosovo as signatories.

This last analysis begins with a correct statement that, according to Article 3 of the VCLT, Serbia and Kosovo can sign an agreement even though they do not recognize each other, i.e. that an agreement can be concluded between a state and non-state entity or a state and entities whose statehood is questionable. Granted, the analysis does not mention that, in such situations, states usually add a special clause on the non-existence of recognition, which was not the case here. Perhaps the author assumed that Serbia simply forgot about it, although it does not seem likely to me, having in mind the entire context.

It also noted that although it is possible to argue that the „agreement“ is not binding, this is not the case in this situation because in practice commitment is primarily avoided by agreeing to very „loose“ provisions.

The analysis then proceeds to examine the specific points of the „agreement“ to determine whether the provisions are „loose“ or not. In the end, in my opinion, it uses this as a base for the unconvincing conclusion that sufficiently specific provisions imply the binding nature of the whole „agreement“.

What the analysis lacks, however, and which calls into question the quality of its conclusions, is the fact that one step in reviewing the legal nature of the AEN has been skipped. The will of the parties which participated in the negotiations.

Indeed, the form and title of a document do not have to be essential for determining whether an agreement is binding or non-binding, but even texts that are hyperlinked in the analysis, such as that of Oscar Schachter in 1977, state that “treaty or international agreement… requires the intention of the parties to create rights and obligations.” It continues by saying that the problem is often found in the fact that parties do not always express a clear presence or absence of that intention during negotiations and (or) signing. In that case, the will to conclude a binding agreement must be sought in the language of the provisions of the agreement and the circumstances of its conclusion.

Insisting that the declared intention to reach an agreement is an important element in concluding whether it is an agreement in terms of international law stems from the very definition of an international agreement. This can also be seen in the leading doctrinal comments of the VCLT, as well as in the practice of the International Court of Justice.

Although it is true that, in the Qatar-Bahrain dispute from 1990, the ICJ ruled that an international agreement was reached between the two countries via the signing of the minutes of the meeting, despite Bahrain’s claim that its representative never intended to conclude an international agreement, such a verdict is a consequence of at least two facts that are not relevant for the example of the signing of the agreement by the representatives of Serbia and Kosovo: 1) The first time Bahrain claimed that the signature was not binding was a year and a half after the meeting (which makes a huge difference when compared to the remarks of the President of Serbia, both during and immediately after the negotiations, that the possibility of signing an agreement with Kosovo was rejected); 2) the signed minutes in the case of Qatar and Bahrain contained text which, in the opinion of the Court, unequivocally indicated the existence of a will between the parties to commit themselves to the signed text.

The declared intention to be bound by a contract may be of secondary importance if the provisions of the „agreement“ are unambiguous, however, as some authors in Serbia have already pointed out, this is not the case with the AEN – not only are there very vague points without deadlines and without any explanation of how the “obligations” will be fulfilled, but there are also other indicators that this is not an international agreement – the official names of the negotiating parties were not used, the English term “will” is used, not the commonly used “shall” – although the State Department itself advises not to use the term “will” in binding documents. Furthermore, it does not say in what way, nor within what period the AEN will come into force, etc.

Although the AEN, of course, also contains different examples, in such situations when parts of the document are not clear enough as to whether it is an international agreement or not, the unequivocal lack of will of one of the signatories during and immediately after negotiations must be a sufficient indicator that it is not an international agreement.

Therefore, this agreement between Kosovo and Serbia also did not take place. Only a non-agreement did. But this non-agreement is also a consequence of the rather frivolous behavior of Serb officials who interpret the legal nature of signatures in Washington in a different way every day. And from the point of view of Serbia’s interests, perhaps now would be the right time to confirm the non-binding nature of these signatures.

If we accept the line of reasoning that, in the case of negotiations and signing of documents in Washington, there is no question that there had been no agreement or treaty in the international legal sense, a sensible question remains unanswered: why did the three men (did you notice a single woman in the Oval Office among the officials?) in dark suits sign anything if they did not want it to result in legal obligations?

First of all, it would seem that the three men had different political intentions. The President of Serbia seems to have wanted an agreement with the United States. Kosovo seems to have wanted an agreement with Serbia if that agreement means mutual recognition. The President of the United States wanted talks, but without obligations. And it takes (at least) two to reach an agreement. In any case, the cameras were there, and the public was eager for concrete results in the form of signatures.

This brings us to the third international law possibility – for us not to interpret these documents signed by three men in dark suits in Washington as an agreement, but as unilateral legal acts. Unilateral legal acts are statements showing the will of the competent state bodies of an international legal entity that were adopted with the intention that, at least in certain situations prescribed by international law, they may lead to legal obligations for that entity. There are different classifications of unilateral legal acts in international law, but one of the usual classifications is the one with five principles, which includes a promise. In 2006, the International Law Commission published the principles to be taken into account when assessing the binding nature of unilateral legal acts.

These principles also insist that the condition for a unilateral legal act to produce legal obligations for the subject who issued it is the existence of an intention to be bound by that act. The ICJ confirmed that the context of the adoption of the act and its content are indicators of the readiness to be bound by that act.

On the one hand, it is really difficult to see what the United States promised in the documents that were signed. In the kind, but somewhat meaningless letter to Prime Minister Hoti, Trump wrote, among other things, that the US is looking forward to further cooperation (the content of the letter addressed to President Vucic is still unknown to the public). Furthermore, the 16 points of the document on economic realization do not contain specific obligations of the US – certain US bodies are mentioned in points 3, 7, and 10, but without any specific obligations for the US (after all, Trump did not sign those 16 points).

As far as Serbia and Kosovo are concerned, there are certain points in the document that could result in legal consequences, but there are certain problems here as well.

First of all, the basic question is whether the President of Serbia can issue a unilateral legal act that promises something to Kosovo when it is an integral part of the Republic of Serbia – according to the standpoint of Serbia and its constitution,. The second question is whether Kosovo can issue unilateral legal acts at all and whether Serbia would ever invoke such an act.

Unilateral legal acts can also function in such a way that an obligation is made towards the entire international community, but having in mind the content of 16 points, it is difficult to talk about this. But, even if we leave these essential questions aside, the question remains – what kind of promises could be made under these 16 points at all?

As mentioned earlier, most of the AEN points do not contain specific obligations of the signatories, how they should be fulfilled, as well as the deadlines within which this should be done. This is important because the International Law Commission had clearly pointed out, and backed it up with the practice of the ICJ, that a condition to bind states through unilateral legal acts is for these obligations to be formulated in a clear and specific way.

In case of any doubt regarding the domain of obligations of states, these obligations should be interpreted in good faith, but restrictively.

It seems that only a few points from the AEN meet the requirements of clarity and specificity. An important exception in this regard is the penultimate point in the documents signed by Prime Minister Hoti and the President of Serbia, as well as the last one signed by the latter because the obligations are clearly formulated (although there are different interpretations of their domain) and a deadline for their fulfillment was set.

I would not be surprised if, at one point, Israel reminds us of what was signed and says that the legitimate expectations of this country have occurred as a result of the promises of Serbia and Kosovo, and stressing that this must be fulfilled. Finally, unilateral legal acts, as a rule, cannot produce obligations toward other entities unless those other entities agree to it – which may be important in the context of certain points.

As a result of the above-mentioned, the conclusion remains that – even if we take into account the possible existence of unilateral legal acts – there are a lot of non-agreements left after the negotiations in Washington.

The fourth and probably the last international law possibility is that the signatures in Washington do not create any international legal obligations. So? Does that mean they are unimportant? Not really.

Although the distinction between binding and non-binding acts in international law is very important, it is nevertheless occasionally overestimated. Namely, it is about the fact that international law generally does not have a developed system of sanctions, i.e. mechanisms that could be used in case of violation of international legal obligations. Therefore, even in situations when a state representative signs a non-binding document, the reaction of other states is very important.

There is a wide range of possible responses. In other words, states can put pressure through diplomacy to respect what is signed, although this is probably not legally binding.

In the end, all of this leads us to a very brief review of certain foreign policy consequences of the signatures of three men in dark suits in the Oval Office on September 4. First of all, Serbia was not put before a fait accompli of recognizing Kosovo in these negotiations. This is the result of its efforts to use Trump’s (first?) mandate to improve its relations with the United States and perhaps attempt to use that situation to support its view of a compromise solution of Kosovo’s status (previously expressed via the term „delimitation“).

The Washington talks came late in that regard. Thaci was no longer sitting at the table, Trump’s mandate was dangerously coming to an end, and today no one can be sure whether anyone will keep his promises and whether the President of Serbia will have the same interlocutors from Pristina and Washington in a year.

At the end of Trump’s mandate, Serbia did not get what it wanted, the United States did not commit itself to any financial support for Serbia (at least not at this moment), but it also did not experience a total downfall.

In a year from today, we may appreciate the fact that the negotiations in Washington also marked an attempt by Serbia’s foreign policy to make a sharp turn toward the United States, which would probably mean response from some other forces. At the same time, Serbia may have tried to permanently improve relations with Israel by relocating its diplomatic mission to Jerusalem (an act that would be contrary to the norms of the international law and which could seriously jeopardize the consistency of Serbian foreign policy and its insistence on respecting the norms of international law).

According to very recent media reports, however, the decision to move the diplomatic mission was seen as a concession to Trump, and it is being reconsidered only a few days after the signing in Washington.

This raises the serious question of whether Serbia’s behavior in Washington should be recognized as an attempt to change the strategy or just as an inarticulate tactical move.

Generally speaking, Serbia’s foreign policy making a sharp turn toward the United States and Israel, which would eventually withstand a change in the US administration, could cause serious consequences in the Balkans. It is still early to claim that this will happen, however. Bearing in mind that such a move would have numerous negative sides, it is very important to weigh all the consequences.

Until then, Serbia will face serious challenges in negotiating a comprehensive binding agreement on the status of Kosovo under the auspices of the European Union. We will see if there will be non-agreements there as well.

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