Kosovo and Serbia dialogue on “normalization of relations” or “mutual recognition?” The EU approach and elements of the legally binding agreement between parties

01 November 2021

What is the substance of the normalization of relations or comprehensive normalisation and why does the EU refer it as such, in the context of legally binding agreement between Kosovo and Serbia? Notwithstanding the EU’s status neutrality attitude towards Kosovo, there are several indicators that make us believe that the pragmatic ambiguity of the term normalization of relations, in principle aims mutual recognition between the parties, i.e. Kosovo and Serbia.

Firstly, the Enlargement Procedure of the EU in Article 49 TEU enshrines the conditions of eligibility and procedure for accession, for a country to become a fully fledged EU MS. Hence, by applying the provision “Any European State…” creates several implications for Kosovo. To that end, even though the EU Institutions play a considerable role in the preparation of the accession, the EU is not a party to the forthcoming International Agreement between the Member States and the applicant state. As a result, the Accession Treaty needs to be ratified solely by the existing and new Member States in compliance with their respective constitutional requirements. In this regard, Kosovo is an independent country for 22 out of 27 EU MS, but not for five of them (Spain, Romania, Slovakia, Cyprus and Greece), consequently neither is an independent country for the EU as a whole. Hence, given this fact, the logical and legal implication for countries that apply for EU membership would be that they must fulfill the statehood criteria, or that the EU would have to amend its Treaties in this respect. Therefore, by expecting that the EU would amend its Treaties in order to accommodate the possibility of Kosovo to apply for EU membership, is a highly unlikely a possible option.

Secondly, the Stabilisation and Association Agreement (SAA) between the EU and Kosovo reiterated the importance of the Kosovo- Serbia dialogue, by stipulating it as an essential element of the SAA, which shall lead to the normalization of relations between them. Hence, Article 13 of the SAA envisages the Agreement to be:

• legally binding that ensures that both countries can continue on their respective European paths;
• while avoiding that either can block the other in these efforts;
• with the prospect of both being able to exercise their rights and fulfill their responsibilities.

That being said, one could note that the SAA is complementary to the EU facilitated dialogue for the process of normalisation between Kosovo and Serbia which aims to lead to mutual recognition between parties. Hence, notwithstanding that five EU MS have not recognized Kosovo yet, they all agreed to these specific provisions of SAA. Indicating that they all agreed that Kosovo and Serbia should reach an agreement that fulfils the conditions to enable both countries their respective path to the EU. Considering that whenever there was an advancement in the dialogue between Kosovo and Serbia, that was notably reflected to the advancement of the European Agenda of the respective country. Therefore, the logical expectation would be that by reaching a landmark agreement on mutual recognition, the five EU MS would follow the recognition of Kosovo. Hence, ensuring that eligibility criteria for EU accession application, are fulfilled from Kosovo.

The third indicator that the agreement between Kosovo and Serbia shall result on mutual recognition, is the ongoing negotiations of Serbia accession to the EU. That is to say, Serbia’s chapter 35 of the negotiating chapters for EU accession, represents another clear, precise and concrete indicator that Serbia must finalise an agreement on normalisation of relations with legally binding effect, that will enable both Kosovo and Serbia to continue their EU respective path. Given the fact that several western countries & US have explicitly requested from Serbia to recognise Kosovo, hence to have an agreement on mutual recognition, that could not be echoed from officials of the EU Institutions as well. Obviously due to the fact that EU foreign policy is heavily dependent on the main decision-making body, i.e. the Council – that reflects the MS interests, hence the interests also of five non-recognizers.

Finally, the EU needs to recognize that the Serbia-Kosovo dialogue is deadlocked and need to seek alternatives to anchor the negotiating process within the European Integration process. The change of paradigm would need from the EU to map out a clear path towards membership for Kosovo and Serbia. Consequently, the constructive ambiguity of the term “Normalisation” will soon have an end date, since the only acceptable agreement that ensures legally binding effect and paves the EU respective path of each country is an agreement that is based on the principle of mutual recognition.

 

This op-ed is originally written in English.

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