On the European proposal/agreement: What was (not) lost in translation

By Dragutin Nenezic

The text of the European (no longer Franco-German) proposal, now called „Agreement on the path to normalization between Kosovo and Serbia,“ was published last night. In this article, I would like to briefly discuss some key issues that have arisen in connection with it, as well as to analyze each article separately, highlighting some sections of interest. An impatient reader may only read the first part and skip the analysis, while a reader hungry for a more detailed explanation and analysis will have to summon a bit of patience.

Did Serbia recognize Kosovo?

Formally – it did not, but it recognized, among other things, the territorial integrity of Kosovo (without a footnote, as I will refer to it in the rest of the text, even though I do not agree with this), its national symbols and passports, as well as its right to join international organizations. Explicit recognition is reserved for the final, comprehensive agreement, and this document, as its name suggests, is part of the path to normalization, that is, the path to such an agreement, which I have written about previously.

Is this a proposal or an agreement? Has it been accepted or signed?

This is undoubtedly an agreement, although the title also uses the term „proposal“, and it has been accepted but not signed. The fact that it is referred to as a proposal and that it was not signed can stem from several factors: Signing may not have been planned in the first place, and both probably represent a political concession to one or both parties – here I draw attention to the note presented below in the analysis of Article 11. Certainly, according to articles 11 and 14 of the Vienna Convention on the Law of Treaties, which can be consulted regardless of any issues surrounding its applicability to Kosovo, acceptance is equated with signing, and we heard from Josep Borrell as the representative-mediator that the parties „agreed that no further discussions are needed on the EU Proposal.”

A separate question arises as to the legal fate of this agreement in the Serbian legal system. I would like to remind that the so-called Brussels agreement was not formally ratified in the National Assembly of the Republic of Serbia, but its text was found in the explanation of an act adopted by that assembly, while the Constitutional Court of the Republic of Serbia declared itself incompetent to adjudicate on the issue, citing the so-called ‘political issue’ doctrine. It’s possible that it won’t be much different this time, perhaps not even slightly, but again, according to the Vienna Convention, this should not affect the validity of the agreement.

What’s next?

As Borrell said on two occasions, the parties will deal with “determining the modality of implementing the provisions of the agreement,” and further negotiations will follow only on how the agreement will be implemented. Implementation, as the situation stands, may involve, first of all, a series of further steps (whether or not, for example, a return to institutions will occur first, followed by the formation of the ASM, or vice versa – although the second option does not make any sense if you take into account the documents by which the ASM is regulated, as well as the current status of municipalities in the north of Kosovo), as well as deadlines for their implementation. It is a symbolic and ominous coincidence (or not a coincidence at all, but was done on purpose) that according to everything we have heard, the agreement on implementation is expected the day after March 17th, to be confirmed on March 24th at the meeting of the European Council.

Text analysis

The agreement contains a preamble and 11 articles. It is modeled after the 1972 Treaty on the Basis of Relations Between the Federal Republic of Germany and the German Democratic Republic (the so-called two-Germanys agreement), which I also wrote about, and here you can find a comparative overview of those two agreements that I prepared while writing this text. Compared to the versions published in the media, there are small changes, which may be the result of some kind of harmonization (rather than negotiations in the true of the word) and/or through public testing.

The preamble is largely the same as in the agreement between the two Germanys, with adjustments related to a different historical period and context. I would especially emphasize the reference to the inviolability of frontiers and respect for territorial integrity on the one hand, as well as the note concerning „the different view of the Parties on fundamental questions, including on status questions.”

Article 1, as in the agreement between the two Germanys, talks about good-neighborly relations, but it is expanded by the provision on mutual recognition of „documents and national symbols, including passports, diplomas, license plates, and customs stamps.“ Therefore, this is an attempt to solve several problems from the corpus of Brussels agreements, although this is impossible to confirm without an insight into the implementation plan.

Article 2, as in the agreement between the two Germanys, contains a reference to the principles laid down in the UN Charter, 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.” The first thing that leaps to the eye is the use of the term „State“, which confirms Kosovo’s statehood, this did not have to be the case if you take into account the judgments of the European Court of Justice, which I also wrote about. An interesting question is whether the right to self-determination will be interpreted in such a way as to allow the secession of the part of Kosovo inhabited by Serbs.

Article 3 concerns the settlement of disputes by peaceful means and the prohibition of the use of force, with the fact that, unlike the agreement between the two Germanys, it does not contain a provision on the inviolability of frontiers, although there is a reference to it in the preamble.

Article 4, in the first part, states that either of the two can represent the other in the international sphere – similar to the agreement between the two Germanys, but it also contains an additional provision that Serbia will not object to Kosovo’s membership in any international organization. Unfortunately, I think that this effectively ends the period during which Serbia in the international sphere (therefore, not in the internal sphere) treated Kosovo as an autonomous province of Serbia.

Article 5 differs from the same article in the agreement between the two Germanys, and concerns the separate EU path of Serbia and Kosovo, which has been known since at least 2008, so I will not waste space and time on that.

Article 6 corresponds to Article 7 of the agreement between the two Germanys, and defines a number of areas in which Serbia and Kosovo will cooperate, which will be regulated by separate agreements. In addition, in the first paragraph, it is confirmed that the final outcome of the negotiation process will be „a legally binding agreement on comprehensive normalization of their relations.“ It remains to be seen how this article will be applied with regard to the existing Brussels agreements, that is, whether they will be replaced, revitalized (e.g. by returning to the institutions), or something else.

Article 7 is specific when compared to the agreement between the two Germanys. The first paragraph talks about the obligation of both parties to „establish specific arrangements and guarantees (…) to ensure an appropriate level of self-government for the Serbian community in Kosovo and the ability for service provision in specific areas, including the possibility for financial support by Serbia.“ It seems that this is about ASM, but probably out of respect for Kurti, it is not referred to as such. The competencies seem in accordance with the decision of the Kosovo Constitutional Court, which I also wrote about. Finally, Meliza Haradinaj draws attention to the use of the English term „self-management“, which means nothing (unless the author is a fan of self-management and joint work), and has replaced the term „self-governance,“ which means self-government, probably again as a courtesy to Kurti.

The second paragraph, which is particularly interesting, talks about the position of the Serbian Orthodox Church, as well as the protection of Serbian religious and cultural heritage sites, and I can only express hope that it will be properly implemented.

Article 8, identical to the agreement between the two Germany, regulates the exchange of permanent missions, which in diplomatic practice would mean raising the relationship from the level of liaison officers, provided for in the Brussels agreements, to a higher level, but still below the level of embassies.

Articles 9 and onward include specific provisions in relation to the agreement between the two Germanys. Article 9 concerns the (principled) financial support of the EU and other donors, at the level of commitment, i.e. without specifying the amount and similar details.

Article 10 concerns the joint committee for monitoring the implementation, as well as the obligation to implement all past agreements.

Finally, Article 11 contains the obligation of the parties to respect the „implementation roadmap“ annexed to the agreement. Since there is no such annex, I assume that the document is being negotiated, with the added caveat that from the wording of this article, it is possible to either sign the agreement and that document, or not sign either, but only for it to be accepted and confirmed by the European Council.

There is no provision on the applicable law, as well as on the dispute resolution mechanism, so it seems that this is also a so-called ‘soft law’, that is, an agreement with purely political sanctions. In relation to the agreement between the two Germanys, there is no provision on entry into force, due to the nature of this agreement, i.e. concluding an agreement through acceptance.

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