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European Western Balkans
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Is the “two Germanies agreement” a model for the Franco-German proposal for Serbia and Kosovo?

Vučić-Kurti meeting in Brussels, 18 August 2022; Photo: FoNet

In recent days, the central topic on the Serbian political scene is the French-German proposal for Kosovo within the dialogue between Belgrade and Pristina. On January 20, President of Serbia Aleksandar Vučić met in Belgrade with the diplomatic “five” – the representatives of the United States, France, Germany, and Italy, and the EU special representative for dialogue between Belgrade and Pristina, Miroslav Lajčak. After the meeting, Vučić stated that Serbia is ready to accept and work on the implementation of the plan for Kosovo, with one reservation.

While the highest state officials have not yet informed the public of the full content of the proposal, a 10-point document appeared in the media through diplomatic channels, which is claimed to be an integral version of the Franco-German plan for Kosovo. The authenticity of the document has not been publicly confirmed, but it is noticeable that certain elements are contained in previously published drafts of the plan, which diplomatic sources from the EU confirmed at the time. During his address to the National Assembly on February 2, President Vučić suggested that over 90% of what appeared in the media regarding the Franco-German proposal was true.

At the end of the summer of 2022, the Franco-German proposal was officially submitted to the Serbian and Kosovo authorities as a basis for further dialogue. At the beginning of November, the Brussels portal Euroactiv, referring to well-informed sources, published a draft of the future agreement in 9 points. The content was not publicly denied by either the Serbian or the Kosovo side, and the expert community pointed out at the time that parts of the draft were completely copied from the agreement between the two Germanies.

In December, an updated version of the proposal was submitted on the sidelines of the EU-Western Balkans summit in Tirana. EU High Representative for Foreign Affairs and Security Policy Josep Borrell then said that the key elements remained the same. In the meantime, judging by the statements of some European officials, the Franco-German proposal has become a “European proposal”. During January, there was a diplomatic offensive and visits by the “five” to Belgrade and Pristina with the aim of convincing the leaders to sign the agreement.

The agreement between the two Germanies and key parts of the Franco-German proposal

Based on the analysis of the document contents which was published in the daily newspaper Danas, a significant similarity with the provisions of the agreement between the two Germanies from 1972 is noticeable.

In December 1972, after more than a year of negotiations, State Secretaries Egon Barr and Michael Kohl signed the Treaty on the Basis of Relations between the Federal Republic of Germany and the German Democratic Republic, the Basic Treaty, in East Berlin. The agreement, which for the first time regulated the relations between the two German states, became the basis for all future agreements until 1990. It is considered the pinnacle of the “Eastern Policy” (Ostpolitik) of the normalization of relations and the contractual settlement of open issues between the Federal Republic of Germany and the countries of Eastern Europe.

Although there is no explicit mention of mutual recognition, the agreement opened up the space for both the Federal Republic of Germany and the German Democratic Republic to be recognized by the international community and countries that have not done so. Also, both became members of the United Nations in September 1973.

The model of two Germanies was often taken as an example of what the outcome of the dialogue between Serbia and Kosovo could look like. Five articles from the available document of the Franco-German plan for Kosovo are the same or, on the other hand, correspond to the essence of certain articles of the agreement between the two Germanies.

The first article of both documents envisages the development of normal good-neighborly relations, based on equal rights (the Franco-German plan) or equality (which is the wording used in the treaty between the two Germanies).

In terms of representation in international forums, the Franco-German proposal completely copies the provision adopted by the Federal Republic of Germany and the German Democratic Republic – that neither side will represent the other in the international sphere or act on its behalf. Shortly after the signing of the Basic Treaty, the entry of both German states into the United Nations was made possible based on the acceptance of this reality.

Based on the proposal, the obligation to exchange permanent representations of Serbia and Kosovo, which will be located at the respective governments’ headquarters, would be established. Practical issues related to permanent missions will be dealt with separately. This article is also taken in its entirety from the agreement between the Federal Republic and the German Democratic Republic. Bearing in mind that in practice the two German states, even after the agreement of 1972, never established diplomatic relations at the ambassador level, but instead, de facto maintained them at a lower level, it is possible to expect that a similar model will be followed by Serbia and Kosovo if an agreement is reached.

The documents also emphasize the obligation of the parties (FR Germany and DR Germany, and Serbia and Kosovo) to abide by the principles of the United Nations Charter, especially the principles of sovereignty, respect for independence, autonomy, and territorial integrity, as well as the right to self-determination and the protection of human rights. Finally, the articles of both the Basic Agreement between the two Germanies and the potential agreement between Serbia and Kosovo, based on the Franco-German proposal, define the settlement of all mutual disputes by peaceful means, while refraining from the threat of force or the use of force.

The similarity of the consequences and effects of the two agreements?

Taking into consideration that the agreement between the two Germanies, whose key elements are included in the Franco-German proposal, enabled the recognition of states and the establishment of diplomatic relations with the then-remaining part of the international community that had not done so before, it raises the question of whether a similar agreement between Serbia and Kosovo would have the same effect.

Especially due to the fact that all 27 member states of the European Union are behind the plan, among which there are currently five (Spain, Greece, Romania, Slovakia, and Cyprus) that do not recognize Kosovo’s independence.

Igor Novaković, director of research at the ISAC Fund, points out that in theory, it is possible to assume similar consequences, but that today there are significant geopolitical differences and that the eventual agreement will not have a decisive impact on EU member states that do not recognize Kosovo.

„For Pristina, the process of joining the EU and NATO is crucial, and that depends on the five EU member states (of which 4 are NATO members) that have not recognized Kosovo, each solely for their own reasons. So the question is whether the agreement itself will be enough for them,” says Novaković for European Western Balkans.

Unlike Novaković, assistant professor at the Faculty of Political Sciences, Stefan Surlić, believes that accepting the European proposal could soften the stance of those EU member states that do not recognize Kosovo.

“I don’t think that the signing of the French-German proposal would automatically lead to the formal recognition of Kosovo’s independence by the “non-recognizers”, but judging by the wording that was presented, the signing of the document could lead to a softer attitude of these countries regarding Kosovo’s membership in international organizations.” says Surlić for EWB.

Another important aspect of the legal consequences of the agreement, if it is concluded in its current form based on the given proposal, is the possibility of it being interpreted as an indirect, de facto recognition of Kosovo. There is a widespread opinion that the German-German agreement is a kind of implicit, ie. “recognition without recognition”.

Novaković believes that the eventual agreement, which is most likely intended as a prelude to a larger agreement on normalization that follows, could not be viewed as such, but that it would enable unhindered cooperation and de-escalation.

“Essentially, Serbia would recognize the special legal autonomy of Kosovo and commit to a certain political and international restraint, but there are legal ways to “pack up” the decision, while Belgrade remains with its previous positions,” adds Igor Novaković.

Pavle Kilibarda, a post-doctoral researcher from the Faculty of Law of the University of Geneva, on the other hand, expressed, in the author’s text for KoSSev, an opinion that the proposal, although it does not contain the word “recognition”, would produce exactly such an effect – the recognition of Kosovo’s independence. According to him, “the right to territorial integrity, the prohibition of the use of force, the right to independent representation in international relations are the rights of states and the norms regulating interstate relations.”

Kilibarda also reminds that in a judgment in July 1973, the Constitutional Court of the Federal Republic of Germany took the position that the Basic Treaty of the two Germanies, on which the current proposal is based, is a treaty between two independent countries, but that by using only legal fiction it confirmed that it was not in contradictions with the Basic Law (Constitution) of the Federal Republic of Germany.

While the remaining articles in the Franco-German proposal relate to specific issues important for the Serbian community and the context of the EU’s future, the five articles presented above, identical to the elements of the agreement between the two Germanies, would certainly be the backbone of a potential agreement between Serbia and Kosovo, if it corresponds to the currently available content and the two parties agree to sign it.

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