Revisiting the historic agreement between Kosovo and Serbia from 2013 with one technical suggestion for breaking the deadlock

In 2013, in the framework of the EU-facilitated dialogue for the normalisation of relations between Kosovo and Serbia, and 14 years after the end of the war, leaders of both countries signed the ‘First Agreement of Principles Governing the Normalisation of Relations’. The EU considered the agreement historic, as did highly reputable news organisations, such as the Guardian. However, in Kosovo, the agreement was met with hostility. The establishment of a Community/Association of Serb-majority Municipalities in Kosovo (ASM), which was elaborated in six of the 15-points of the agreement, became the main point of contention. Political parties from the opposition, as well as civil society organisations denounced the agreement as an effort to establish a third layer of power, or a Republika Srpska-like entity in Kosovo, and called it ‘a disaster in the making’. Concerns in Kosovo were related to the potential for the ASM to become detrimental to the functionality of the state, even though based on the 2013 agreement the ASM exercises competencies in accordance with the European Charter of Local Self-Government and Kosovo law. It is also important to note, that only the part about the ASM in the 2013 agreement was fiercely opposed, while other points from the agreement, such as the energy, and integration of the Serb security structures as well as the judiciary into the Kosovo system, were largely ignored or their impact was not sufficiently recognised. The 2013 agreement marked a significant step forward in expanding the authority of the Kosovo institutions throughout the country, and integration of the Kosovo-Serb community, especially from the north of the country.

The 2013 agreement is arguably a positive example in the overall context of democratic scrutiny of peacebuilding initiatives, and a rare case for Kosovo. Three days after the agreement was reached in Brussels, Kosovo Assembly met on 22 April at an extraordinary session and approved a resolution that gave consent and supported the signing of the agreement by the government. Based on this, on 28 May, the government transformed the agreement into a law, which was ratified by the Kosovo Assembly with the votes of 84 out of 120 members, as an international agreement, with only three votes against and one abstention. In addition to this, the 2013 agreement resulted in Kosovo establishing contractual relations with the European Union (EU), by signing the Stabilisation and Association Agreement (SAA), which entered into force in 2016. Furthermore, in 2017, the Framework agreement between the EU and Kosovo for the participation of Kosovo in the EU programmes entered into force, creating new opportunities for many sectors in Kosovo to advance exchange with the EU. An implementation plan for the 2013 agreement was agreed upon by both governments in May of 2013, and it details the necessary steps for the implementation of the arrangements in the agreement, including the ASM. A management team is foreseen to be established by both governments with the participation of four municipalities from the north of Kosovo, whose responsibility is to produce a draft statute for the ASM. The functionality of this team was not effective, and more than often due to the lack of cooperation from Belgrade, or lack of political will to establish the ASM in accordance with the 2013 agreement.

The 2013 agreement, including the provisions on the establishment of the ASM passed the test of the Constitutional Court of Kosovo in 2015. In its judgement (Case no. K0130/15), the Constitutional Court of Kosovo considers that the 2013 agreement had become part of the internal legal system and that ‘the establishment of the Association/Community is in compliance with the constitutional requirement and thus is part of constitutional order of the Republic of Kosovo.’ However, the same judgment found that the principles upon which the ASM would be established, as defined on 25 August 2015 agreement titled ‘Association/Community of Serb-majority municipalities in Kosovo–general principles/main elements’ do not entirely meet the constitutional standards. This requires for the government to ensure that the decree of the government to establish the ASM, would be fully compatible with the Constitution as well as other legislation, such as the law for inter-municipal cooperation. The judgement obliges the government of Kosovo to send the legal act establishing the ASM and the statute for verification to the Constitutional Court of Kosovo, a procedure that would provide the necessary legal safeguard for the government, secure legitimacy for the government’s action to establish ASM as well as prevent any potential legal hurdles [with the ASM], which is important for its functionality.

One technical option, to move in the right direction and break the impasse with respect to the implementation of the 2013 agreement and establishment of the ASM, is the procedure of concept document. The government, based on the internal rules of procedure, is obliged to have concept documents inform its decisions. Accordingly, the government should commission a team of experts to prepare a concept document on the implementation of the judgement of the Constitutional Court of Kosovo from 23 December 2015 (Case no. K0 130/15). The concept document can provide the government with concrete policy options on how to implement the 2013 agreement and the judgement of the Constitutional Court, as well as offer some leverage over the availability of options. What is important to note in this context is that neither EU nor the United States, have asked the government of Kosovo to establish an ASM that would not be in accordance with the judgement of the Constitutional Court.
The way forward in resolving the situation in the north of Kosovo is through an approach that affirms integration and recognises as well as respects the needs of all Kosovo citizens, including the Serb community in the north of the country. Such an approach would show that Kosovo is a rational actor that delivers on its international obligations.

The op-ed is supported by the Royal Norwegian Embassy in Pristina.
The opinions are of the author and do not reflect the views of the Balkans Policy Research Group and the donor.