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Kosovo’s membership in the Council of Europe and the comeback of the Washington Agreement

Kosovo-Serbia White House signing ceremony; Photo: Twitter / AIEmbassyUSA

Following the expulsion of Russia from the Council of Europe, the calls for the admission of Kosovo to this international organization began circulating. With the formal application pending, Serbia has described the attempt as a breach of the 2020 Washington Agreement.

After the informal dinner with the High Representative of the Union Josep Borrell and other Western Balkan leaders on Wednesday, President of Serbia Aleksandar Vučić said that the Foreign Minister of Kosovo Donika Gërvalla-Schwarz had confirmed that the application would be submitted on Thursday, 12 May. Sources from the Ministry of Foreign Affairs confirmed that the application on Thursday was likely.

Vučić described the move as a “violation, not only of all principles of international law but also of the direct norms of certain agreements, from Resolution 1244 to the Washington Agreement”. He announced a session of the National Security Council of Serbia within the next 36 hours.

The support of two-thirds of the members of the Council of Europe – 31 out of the current 46 – is necessary for membership. The optimism for Kosovo lies in the fact that 34 members have recognised it so far.

Since declaring independence in 2008, Kosovo has become a member of several international organisations, such as the International Monetary Fund, the World Bank, and the International Olympic Committee. It, however, has not become a member of the United Nations, primarily due to the opposition of Russia and China in the Security Council.

Furthermore, in 2015 and 2018 Kosovo failed to get to the required two-thirds majority to become a member of UNESCO and Interpol, respectively. On both occasions, Russia and Serbia lobbied against Kosovo’s membership.

The fact that Serbia would, therefore, oppose Kosovo’s membership in the Council of Europe was not surprising. However, the way in which it framed its argument was somewhat unexpected.

Vučić invokes the Washington agreement

During the press conference with German Chancellor Olaf Scholz, held on 4 May, President of Serbia Aleksandar Vučić invoked the documents he and then Prime Minister of Kosovo Avdullah Hoti signed at the White House on 4 September 2020, in the presence of then-President Donald Trump – the so-called “Washington Agreement”.

“If someone does not want to respect the Washington Agreement and wants to go that way, our hands will be untied as well. We will act in accordance with the Constitution of Serbia and our national and state interests,” Vučić said, answering a question of a Serbian reporter on whether Belgrade would remain committed to the Agreement if Kosovo moves forward with its application.

The Washington Agreement, which, as experts pointed out, is not a legally binding international agreement but an expression of political commitment, thus made a sudden comeback to the Serbian public.

The loss of Donald Trump, with whom the Agreement is personally associated, in the 2020 presidential elections contributed to its gradual public marginalisation. Even though the new US Administration confirmed that the agreement remained valid, it mostly receded from public view in Serbia, especially after Israel recognised Kosovo as a result of the documents.

Political scientist Ognjen Gogić believes that there might be two reasons for Serbia to now once again refer to the Washington Agreement.

“Firstly, it is arguably the only document agreed by Belgrade and Pristina that stipulates that Kosovo would renounce its aspiration to join international organizations. Besides that, there is not much President Vučić can hold on to given that the documents stemming from the Brussels dialogue envisage quite the opposite: that Serbia and Kosovo would refrain from attempts to block each other on their EU pathway”, he explains for the European Western Balkans.

Aleksandar Vučić in Brussels, 11 May 2022; Photo: Facebook / Aleksandar Vučić

What also made the invoking of the Washington Agreement confusing is that the documents specifically stipulate that a moratorium for Kosovo’s attempt to join international organizations would last only one year, that is until 4 September 2021.

“Kosovo [Pristina] will agree to implement a one-year moratorium seeking new membership into International Organizations. Serbia [Belgrade] will agree to a one-year moratorium of its de-recognition campaign”, reads the text signed by Vučić and Hoti in 2020.

Ognjen Gogić says that, while the wording of the agreement did foresee that Kosovo would commit to only a one-year moratorium, the provisions are nonetheless still pertinent taking into account that the Washington agreement has still not been fully implemented.

“One could argue that Kosovo would reinforce its commitment to the implementation of the Washington agreement by voluntarily extending the moratorium. That would be seen as a signal of goodwill from the Kosovo side to continue with the process. I wouldn’t for sure contravene the Washington Agreement”, he says.

He adds that the other reason why Serbia might resort to the Washington agreement has to do with its relation with the US.

“The Washington agreement is the result of US diplomacy. By giving importance to the document, Serbia is expressing acknowledgment of the US role in the dialogue with Kosovo. That comes when relations between Serbia and the US are being challenged by the situation in Ukraine. By turning to the Washington Agreement as a recourse, Serbia wants to show appreciation for the US legacy in the process. It might be a way to alleviate the strain that war in Ukraine has put on US-Serbia relations”, Gogić says.

Serbia’s ability to block Kosovo weakened, but what will other countries do?

Meanwhile, at the same press conference with Olaf Scholz, the same (unintroduced) Serbian reporter who brought up the Washington Agreement asked whether Serbia would leave the Council of Europe in the case Kosovo joins. The reporter specifically asked Chancellor Scholz whether Germany wants to expel Serbia from the Council of Europe with its decision that Kosovo should join.

Olaf Scholz said that he would like Serbia to continue to be actively involved in the Council of Europe and that it was important to develop relationships that would see the entire region in the European Union in the future.

Serbian leadership has made no further signals that it would be ready to leave the Council of Europe. Other instruments at its disposal, as already mentioned, is to lobby the members not to vote for Kosovo’s membership, though this time it would have to do it without Russian support within the organisation.

Ramadan Ilazi, Head of Research at the Kosovo Centre for Security Studies, says that Serbia’s opposition to Kosovo’s membership in the CoE is counterproductive.

“It undermines the efforts to promote human rights and the rights for citizens of non-majority communities in Kosovo”, he says for European Western Balkans.

Also, he adds, Serbia’s credibility has suffered significantly in the recent months due to limited alignment with the EU on Russia.

“Therefore, I am not sure it is in a position to seriously affect the accession process of Kosovo in the CoE. Kosovo has had a steady presence in Strasbourg since its declaration of independence, and civil society organizations have paved a way for regular exchanges and cooperation between Kosovo and CoE, therefore, I think membership is a natural result”, Ilazi says.

Session of the Government of Kosovo; Photo: Facebook / Albin Kurti

He adds that the benefits of Kosovo’s membership in the Council of Europe significantly outweigh any reservations member states might have, because it would also increase the pressure on Kosovo’s Government to implement its obligations for human rights protections, including for citizens of non-majority communities, and it would also foster the ability of the CoE to influence developments in the country.

“Membership will create new opportunities for Kosovars to pursue their rights when national mechanisms and institutions fail to do so.  Membership is also going to be a challenge for the institutions in Kosovo, who I am sure will have active dealings with the European Court of Human Rights”, Ilazi says.

Ognjen Gogić, on the other hand, does not believe that Kosovo is guaranteed to become the newest member of the Council. He says that the EU Member States expect Kosovo to reach the normalization agreement with Serbia before approaching the EU and that similar conditions will be applied when it comes to the Council of Europe.

“If those countries wanted to endorse Kosovo’s membership in the Council of Europe they would have done it already. On the contrary, they chose to be patient with that until the whole Serbia-Kosovo process is settled”, he says.

In his view, pushing for Kosovo’s membership in the Council of Europe at this stage would backfire.

“It would create division within Europe as several states do not recognize Kosovo’s independence and would oppose such a move. A dispute like that between European states could be very detrimental to their unity concerning the Ukrainian crisis. The decision-makers in Europe are also aware that such an initiative would also exacerbate the situation in the Balkans”, he points out.

According to the Statute of the Council of Europe, “any European State which is deemed to be able and willing to fulfil the provisions of Article 3 (rule of law and fundamental freedoms) may be invited to become a member of the Council of Europe by the Committee of Ministers.”

The application process for the Council of Europe usually takes some time. The final country to become a member, Montenegro, joined the Council of Europe about a year after it had submitted its application.

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