Unsurprisingly, the very much-hyped US efforts to strike a deal between Serbia and Kosovo have only brought the sloppy bilateral letters of intent and lots of media attention that Trump needed for its flagging re-election campaign. Yet, as the dialogue is back home to Brussels which proves to be the only forum that can deliver political solutions, this article will solely focus on its challenges and prospects of reaching a final deal under the circle of 12 golden stars.

Flawed dialogue, scarce results

A number of substantial elements are usually missing in the EU-led Serbia-Kosovo dialogue.

As the recent BIEPAG op-ed underlines, the lack of legitimacy undermines the capacity of both Serbia and Kosovo to negotiate and, consequently, conclude a(ny) deal. The significance of sound legitimacy and a wide polity-level consensus is not only pertinent for striking a deal, but also for its implementation.

By far, the main deficiency of the Serbia-Kosovo dialogue is the lack of inclusiveness. This concerns primarily the Kosovo Serbs, a community that is amongst the most affected by the outcome of the dialogue, and which is excluded from the negotiations by both Belgrade and Pristina. The example of the reluctant implementation of the 2013 landmark agreement is telling in that regard.

As they were not consulted on the agreement, the Kosovo Serbs initially refused to give effect to it. Furthermore, the overall implementation of agreed deals remains limited precisely for this reason. Giving them an active role in the dialogue is hence indispensable, since the implementation of any (final) deal is heavily reliant on them.

In particular, the Serbia-Kosovo dialogue was never even close to being transparent or accountable. That is true not only for the agenda items, but also the composition of the negotiating delegations and the national positions or platforms. For instance, while Kosovo has discussed and adopted its negotiating platform in Parliament, underlying the main objectives and “red lines” of the dialogue, the Serbian President and de facto chief negotiator stated that revealing Serbia’s platform would undermine its negotiating position. Naturally, no one expects the precise details to be elaborated publicly. However, some sort of a broad definition of the goals set for the dialogue would provide for basic assurances.

Things got better with Lajčák

Notwithstanding all abovementioned structural issues with the Serbia-Kosovo dialogue, it would be unfair to say that nothing has changed with the renewed EU-led dialogue.

Primarily, the level of transparency has increased, as the exact items on the agenda are now published in advance. Since the June restart, the topics covered have included missing and displaced persons as well as the economy, while this week’s meeting saw the discussion on the non-majority community arrangements (implementation of the Association/Community of Serb municipalities), the settlement of mutual financial claims and property.

Miroslav Lajčak, Aleksandar Vučić, Avdullah Hoti and Josep Borrell in Brussels; Photo: Instagram / Buducnostsrbije

Furthermore, the dialogue is now split into two tracks – technical and political, where the latter serves to set the main lines of discussion and to break through the potential stalemates reached at technical level.

Finally, the dialogue has once again become more dynamic (as was the case during the 2011-2013 period) with several rounds already being held. Yet, no deadline for concluding the talks has been set.

Despite the intention to have talks on several different “technical” issues – although one may argue that everything regarding Serbia-Kosovo relations is, by definition, political – that will ultimately lead to a comprehensive agreement encompassing all substantial topics, such an approach could lead to a vicious circle.

Recognition Rashomon

Even if all technical topics are discussed and a compromise is reached, there will still be an issue hanging over it like a sword of Damocles, namely the question of Kosovo’s international status or, to put it differently, the question of Serbia’s recognition. It seems that the Serbian government is ready to cooperate and negotiate on everything except for conceding on the issue of formal recognition. On the other hand, this is Kosovo’s main demand and, presumably, the only way to continue its Euro-Atlantic integration.

Recognition is in fact the issue where the proclaimed “creative ambiguity” of the Belgrade-Pristina dialogue – that allows for different interpretations of reached deals – will eventually hit the wall. To put it bluntly, there is no way around it: either Serbia formally recognises Kosovo or it does not. No legal roller coaster can provide for a creative and legally ambiguous interpretation of recognition.

In view of the EU integration context, the crucial question is whether both Serbia and Kosovo may join the EU without such a formal act of recognition (often mentioned as the 2 Germanies solution). A number of academic (and not only) debates have been prompted by this legal conundrum. Taking into account the EU’s institutional set-up and its constitutional framework, it seems politically inconceivable and legally impossible that two (prospective) EU Member States do not have fully developed mutual relations, thereby including mutual recognition. Is it really possible to imagine two or more EU Member States sitting around the Council table although they do not recognise each other?

Another potential possibility for Kosovo is to join the EU without having previously obtained a UN seat. However, when it comes to the question of whether UN membership is a precondition for joining the EU, the answer is far from straightforward. In principle, there is no provision in EU Treaties explicitly setting out such a requirement.

Yet, the Treaties contain several references to legal obligations related to UN membership, not least the respect of UN principles and adherence to the UN Charter. Hence, these provisions raise the challenging question of how a non-UN member can be required to “comply with the commitments and take account of the objectives … approved in the context of the United Nations”.

In any event, even if UN membership were not a precondition, in order to join the EU, Kosovo would have to be recognised as a state by all EU Member States. This includes the five Member State that have thus far refused to do so, and whose position is unlikely to change unless a final Serbia-Kosovo deal settles the issue.

This inevitably leads to the conclusion that the issue of formal recognition must be addressed in the scope of the Brussels talks. Since that very question will certainly get the dialogue stuck, it is crucial to increasingly push for its resolution along the way rather than leaving it for the very end of the talks. As the recent shortsighted American involvement in the Serbia-Kosovo talks proved to be unable to deliver any comprehensive or viable political solution, it is first and foremost the EU’s task to push for finding of a political framework between Serbia and Kosovo that will deliver a sustainable compromise between their European aspirations and diverging national positions.

Now is the time for the EU to finally provide an answer on the question whether a full normalisation of relations entails a formal recognition, or some lex specialis agreement between Kosovo and Serbia would allow their EU membership without it. Thus, the EU ought to use the political track of the Brussels dialogue to spark talks on the most sensitive of all questions, while offering all possible political and legal modalities to come up with a solution. No economic or other type of normalisation one may come up with will compensate for the lack of a clear answer to that question.