Roadmaps to the „final solution“: two Germanys, minority rights and parallels with Ukraine

Dragutin Nenezić

By Dragutin Nenezic

Lately, we observed a general proliferation of content on the subject of Kosovo – never before have more countries had their own envoys/representatives dealing with the topic, „non-papers“ are appearing and being denied, and dramatic press conferences and announcements are lining up. In addition, an eschatological approach to Kosovo is being built, where the year 2024 is set as the ultimate time limit for achieving the „final solution“.

In such an atmosphere, certain concepts are casually mentioned and trivially and banally used, therefore, in my opinion, attention must be paid to some of them. These are primarily the model of two Germanys, which certain structures in the EU have been advocating for at least 15 years, the concept of minority rights for the entire region as advocated by US envoys/representatives, as well as the concept of Ukraine as a global Kosovo, which became commonplace in our public and collective consciousness.

The model of two Germanys

The model of two Germanys is based on the 1972 Treaty on the Basis of Relations between the Federal Republic of Germany and the German Democratic Republic. With this short 10-article document, the two German republics agreed to exist and cooperate separately, and one of the practical consequences was that both separately and equally joined the UN the following year – after the conclusion of the treaty. The content of the treaty is full of general principles of international law, with a special emphasis on areas that were current during the Cold War, such as disarmament.

Article 7 also mentions the concept of normalization, which is relevant today when it comes to the relations between Belgrade and Pristina, and states that special agreements will regulate areas such as economy, science, and technology, traffic, judicial relations, post and telecommunications, health, culture, sports, environmental protection, etc. which all sounds very familiar.

What would the practical consequences be in applying this model to the relations between Belgrade and Pristina? I would highlight the following:

  • Pristina could become a member of the UN even without the express, formal recognition of Belgrade, which is something that is often mythologized on different sides of the Serbian public discourse;
  • According to this model, the „Comprehensive Agreement on Normalization“ would provide a framework for the relations between Belgrade and Pristina in the areas covered by the Brussels process, whereby this framework would be broader and more general than the so-called Brussels Agreement;
  • Upon conclusion of such an „agreement“, two completely separate entities would continue to exist.

The only question that remains is how the relations between the Serbian people in Kosovo and Belgrade would be regulated – the answer to which can be given by the following concept I would like to address.

Minority rights (in a completely open Balkans)

The minority rights concept for the entire region is a modular solution in the spirit of US pragmatism. In the first step, it implies that the rights of Serbs in Kosovo will be regulated as minority rights. In the second step, such a model can be applied to other minorities in other jurisdictions (e.g. Albanians in south Serbia – which has recently been intensively advocated by the US). In the third step, this concept would be modified for use in Bosnia and Herzegovina, where it would regulate the relationship between three peoples, none of which can be considered a minority.

That concept will be able to have its full application only in the regional context, where it can already be seen that (again) the USA is advocating an „Open Balkans“ that would include all six so-called jurisdictions of the Western Balkans. This would create an American alternative to the Berlin Process, which would enable each minority nation from one jurisdiction to enjoy all the rights that members of that nation have in their home jurisdiction without major difficulties. For example, Albanians from Kosovo could be equal to Albanians from Albania without formal unification.

On the other hand, in Kosovo, this concept would be embodied in a kind of „Association of Serb-majority Municipalities“ which would be nothing more than a simple association of municipalities, and the municipalities themselves would have increased competencies in those areas that Pristina does not want or cannot take over, such as education, healthcare or individual public services that continue to function without major difficulties in the Belgrade legal system. This is nothing new in relation to the competencies provided by Ahtisaari’s plan, so it is by no means Ahtisaari plus, but can only be Ahtisaari minus.

The readers can justly wonder – what is new then? Jurisdiction-wise, nothing really. However, according to the regional context, everything – just as the member municipalities of such an „Association of Serb-majority Municipalities“ would maintain a link with Belgrade through it, something similar could also be demanded by the Albanians in southern Serbia, i.e. this would formalize the connections they already have with Pristina, and precisely limit them to certain areas and modalities.

From a historical point of view, it is worth recalling the example of the Joint Council of Municipalities, an association created on the basis of the Erdut Agreement – one of the instruments of the so-called reintegration of Eastern Slavonia, Baranya and Western Syrmia into the Croatian legal order after the war. Observed in the context of the partition as per the model of two Germanys, any instrument of minority rights in Kosovo would have the same effect as the council, it is only a matter of the time limit in which a percentage of Serbs in Kosovo would be brought within the framework in which they are today in Croatia (taking into account the demographics of Kosovo, which I have already written about).

Similarities and differences between Kosovo and Ukraine

Finally, it is worth looking at the global context. It has become customary to compare the Republic of Kosovo and Ukraine in various ways. What is certain is that Kosovo is a precedent used by all sides in the fratricidal war in Ukraine, but it is very difficult to draw full parallels for at least three reasons:

  • For Ukraine, there is no Resolution 1244, which is logical because it was reached at the end of the NATO aggression, and the war in Ukraine is still ongoing. On the other hand, the unilateral declaration of independence of Pristina was a violation of Resolution 1244, and it remains a key international legal document that must be taken into account when resolving the status of Kosovo, with all the weaknesses that the UN system normally possesses and which manifest today;
  • There was no referendum on Kosovo, as opposed to the one on the areas of Ukraine annexed to the Russian Federation, and this is a difference that Russian representatives often point out (that is, it is an example of their adaptation of the Kosovo precedent in order to legalize and legitimize their situation). The Albanian referendum attempts from the 1990s took place long before the conflict in Kosovo and the NATO aggression, so in that sense, they cannot be relevant, and the unilateral declaration of independence is somewhat delegitimized by the advisory opinion of the ICJ – apart from the fact that it was indirectly accepted by Belgrade, and thus legitimized, through the Brussels process;
  • Finally, Kosovo has not yet been formally annexed to Albania, while Ukrainian areas have been annexed to the Russian Federation. In the same way, Kosovo has not yet been reintegrated into the legal order of the Republic of Serbia, while the war in Ukraine is being waged precisely over the issue.
What would be the practical consequences of these differences?

For Ukraine, the consequence is that due to the different sequence of steps, it will never be able to be equal to the Republic of Kosovo – first the NATO aggression happened, then the UN Security Council resolution was passed, then the unilateral declaration of independence without a referendum and the final outcome is still awaited.

That outcome can be a formalized annexation by Albania, or a creeping, silent annexation through the „Open Balkans“ according to the American model of minority rights, while from the point of view of the Serbs in Kosovo, that outcome can only be further emigration and unfortunate reintegration as was the case in Croatia.

In Ukraine, the war continues, during the war, a referendum was held based on which the annexation was carried out, and an international legal solution is awaited, which no one can predict in the current stalemate the UN finds itself.

What causes the greatest confusion is the different understanding of sovereignty and territorial integrity on each of the sides, depending on their territorial understanding. For Belgrade, it refers to Serbia with Kosovo as its part. For Pristina, it refers to the territory of Kosovo. For Kyiv, this refers to Ukraine within the pre-annexation borders of 2014 and 2022. For Moscow, it refers to the territory of the Russian Federation expanded by annexed areas. That is why it is possible to simultaneously be in favor of the territorial integrity of Pristina (which violates the territorial integrity of Belgrade) and for the territorial integrity of Kyiv, however fundamentally different the situations may be – because at the level of generality of this principle, adjusted for the territorial understanding, those differences become irrelevant.

It is to be expected that when it comes to Kosovo, in order to avoid discussion of these differences, a solution that formalizes the current situation will be insisted on, in a wider regional context, without taking Ukraine into account, and with a focus on the territorial integrity of Kosovo, as well as the territorial integrity of any Western/Open Balkan jurisdiction, within which minority rights would be supported as compensation for unrealized territorial claims.

History teaches us that this is not a good solution, but such a solution will ignore history, just like Resolution 1244, which is (again) directly violated by such a solution, since it guarantees the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, as the legal predecessor of the Republic of Serbia. The current stalemate in the UN will probably only contribute to that, until the moment when it is time for Pristina to join the UN on the basis of an agreement based on the model of two Germanys.

It is interesting to look at the different understandings of the status of the Ukrainian regions annexed to the Russian Federation. The position of the UN General Assembly aside, the Russian Federation is still a member of the UN, and therefore this backdoor accession is legitimized in the UN as long as Russian Federation is still a member. What goes in favor of this understanding of the territorial expansion of the Russian Federation are the EU sanctions, which also extend to the annexed areas, although this annexation is not recognized.



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