European Western Balkans

“Agreement on the path to normalization between Kosovo and Serbia”, a slightly modified French-German proposal based on the “two Germanies agreement”

Miroslav Lajčak, Albin Kurti and Aleksandar Vučić in Berlin; Photo: Twitter / @MiroslavLajcak

The content of the European proposal for Serbia and Kosovo, finally made public after a joint meeting in Brussels on February 27, is almost entirely identical to earlier drafts that appeared in the media. The backbone of the proposal is based on the model of the agreement between the two Germanies from 1972, thanks to which both countries received wider international recognition and membership in the United Nations.

The long-awaited meeting at the highest level of the representatives of Serbia and Kosovo – Aleksandar Vučić and Albin Kurti – with the High Representative of the European Union for Foreign Affairs and Security Policy Josep Borrell and the EU Special Representative for the Belgrade-Pristina Dialogue Miroslav Lajčak, was held in Brussels.

After the meeting, Borrell pointed out that the leaders of Serbia and Kosovo agreed that there is no need for further discussions regarding the European Union’s proposal for an agreement. A new meeting between Aleksandar Vučić and Albin Kurti with Borell should be organized in mid-March when an agreement on the (order of) implementation is expected to be reached.

On the website of the European External Action Service, in the evening hours, after the end of the talks, the European proposal was publicly announced for the first time – although it was known to the public as the Franco-German proposal, by now it has become clear that it was supported by all the member states of the European Union. The official title is the “Agreement on the path to normalization between Kosovo and Serbia” and contains a preamble and 11 Articles.

Similarity to draft agreements published in the media

Two days after the meeting of Serbian President Aleksandar Vučić on 20 January in Belgrade with the so-called diplomatic five – representatives of the EU, Germany, France, Italy, and the USA – a draft document was published first in the daily newspaper Danas, and then in other media, claiming to represent a Franco-German proposal for Serbia and Kosovo. The document included a preamble and 10 Articles.

A comparative analysis of the text of the then “leaked” Franco-German proposal and the now publicly available official EU proposal confirms that the two documents are almost completely identical. The content of the eight Articles of the European proposal for an Agreement on the path to normalization between Kosovo and Serbia corresponds to what was foreseen in the previously available version of the (Franco-German) draft plan.

They include: the readiness of the parties to develop good neighborly relations based on equality and recognize documents and national symbols; they are guided by the principles of the UN Charter (such as the sovereign equality of states, respect for independence, autonomy and territorial integrity, the right to self-determination); resolve disputes peacefully by refraining from the threat of force or the use of force, accept the assumption that none can represent the other in the international sphere (with Serbia’s non-opposition to Kosovo’s membership in international organizations); work on establishing special arrangements for an appropriate level of self-government for the Serbian community in Kosovo and formalize the status of the Serbian Orthodox Church in Kosovo; exchanges of permanent missions in the seats of respective governments; form a joint committee chaired by the EU to monitor the implementation of the agreement and confirm their commitment to the implementation of all previous agreements in the dialogue.

Minor text changes were made in the official version of Articles 5 and 6. Article 5 now explicitly regulates the obligations of Serbia and Kosovo not to block, nor encourage other actors to block the progress of the other party towards the EU, while in the original plan, it was only foreseen that the two parties support aspirations towards membership in the European Union. A similar wording on non-blocking was found in Article 14 of the Brussels Agreement from 2013. As for the next Article, the continuation of the dialogue process until the final legally binding agreement on the comprehensive normalization of relations was elaborated in more detail; as well as deepening cooperation in numerous aspects through additional agreements.

Of course, the EU proposal has 11 Articles, i.e. one more Article than in the original draft, and it refers to compliance with the Implementation Roadmap that will be attached in the Annex to the Agreement. Additional negotiations between the two parties will be needed precisely around the Annex to the Agreement and the specific Roadmap. According to media reports, during the meeting, the President of Serbia was not ready to accept the proposed Annex.

The agreement between the two Germanies as a model for the European proposal

As previously analyzed on European Western Balkans when the version of the Franco-German proposal was disclosed in the media, the backbone of the potential proposal was based on the key provisions of the agreement between the two Germanies from December 1972. The so-called Basic Treaty or the Treaty concerning the basis of relations between the Federal Republic of Germany and the German Democratic Republic regulated the relations between the two German states for the first time and became the basis for all future agreements until 1990.

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

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

Given that often during the past two decades, even before Kosovo’s unilateral declaration of independence in 2008, the model of two Germanies stood out as an example of what the outcome of the dialogue between Serbia and Kosovo could look like, it is reasonable to assume that the European proposal, modeled on the German-German agreement, opens up space for similar consequences and effects.

Interestingly, even the Agreement’s preamble on the path to normalization is almost entirely taken from the treaty between the two Germanies, with some minor adaptations to the contemporary context and specific circumstances of the dialogue between Serbia and Kosovo.

Centrally, the five Articles in the European proposal are literally identical or, on the other hand, correspond to the essence of individual Articles of the Basic Treaty of the two Germanies. The first Article of both documents envisages the development of normal good-neighborly relations, based on equal rights. In terms of representation in international forums, the provision accepted by the Federal Republic of Germany and the German Democratic Republic – that neither party shall represent the other in the international sphere nor act on its behalf – is completely rewritten.

The Article according to which the permanent missions of Serbia and Kosovo would be exchanged was also taken from the German-German agreement. Finally, the elements of the obligation of the parties (FR Germany and DR Germany, and Serbia and Kosovo) to be guided by the same goals and principles of The Charter of the United Nations, as well as to resolve mutual disputes peacefully, without the threat of force or the use of force, are repeated. It is interesting to note that, nevertheless, only the position on the inviolability of the existing borders, which is an integral part of the Article related to the peaceful settlement of disputes in the agreement between the two Germanies, is not included in the European proposal.

What comes next?

As announced, in the next month, further negotiations between the two sides are expected regarding specific issues of the implementation of the agreement, as well as the visit of Miroslav Lajčak to Belgrade and Pristina in order to prepare the next meeting at the highest level, which will be organized in Ohrid.

Judging by the statements of interested actors, Aleksandar Vučić and Albin Kurti accepted the European proposal – the agreement, but the document was not signed. Strictly speaking, in terms of the Vienna Convention on the Law of Treaties, the acceptance of an agreement can be equated with the act of signing itself. Let’s recall that in 2013, Prime Ministers Ivica Dačić and Hashim Thaçi signed the Brussels Agreement, which was then approved by the two governments a few days later.

If the formal signing of the agreement is planned at all, it is realistic to assume that it will take place in the coming months, only after the agreement on the (supplementary) Annex to the agreement is finalized. On 2 March, EU foreign policy spokesman Peter Stano, responding to media questions about Borell’s meeting with Vučić and Kurti and their subsequent statements about the meaning of the proposal and its implementation, pointed out that the European proposal is not a text that should be signed between the two parties, but that it is necessary to work on ensuring its application.

However, it seems that the dispute will arise precisely in connection with the potential (literal) application of the provision as it is in Article 4 of the proposal – on the obligation of Serbia not to oppose Kosovo’s membership in international organizations. During an appearance on RTS, the President of Serbia stated that he did not agree with that Article and that is why he did not “sign” the draft agreement in Brussels and that Serbia’s „red lines“, which will not be discussed, are mutual recognition and Kosovo’s membership in the United Nations.

Another possible “mine” in the next phase of negotiations (about the Annex to the implementation of the proposal-agreement) is the issue of the Association of Serbian Municipalities (ASM). The formation of the ASM is an unfulfilled obligation that Pristina undertook back in 2013 with the Brussels Agreement. The Serbian side is now especially insisting that it be realized in the earliest period, probably before or in parallel with the implementation of all elements of the EU proposal, while the government of Albin Kurti showed unwillingness. The European Union’s proposal itself explicitly emphasizes the obligation to implement all previous agreements (primarily the Brussels agreement), and Article 7 also indirectly refers to the ASM, through the wording “ensuring an appropriate level of self-government for the Serbian community in Kosovo, in accordance with relevant European models.”

Association of Serb Municipalities remains the main obstacle in Serbia-Kosovo dialogue

Considering the high level of engagement of international representatives (the European Union, the leading EU countries, and the USA) in the previous period before accepting the proposal, it is to be expected that the same pace of intensive talks and visits will continue in order to find a compromise between the Serbian and Kosovo sides regarding the disputed aspects in order to fully implement the agreement.

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