European Western Balkans

“Constructive ambiguity” in the dialogue between Serbia and Kosovo present even after the Ohrid agreement

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After the 12-hour round of dialogue between the leaders of Serbia and Kosovo, Aleksandar Vučić and Albin Kurti, on March 18 in Ohrid, facilitated by the EU High Representative for Foreign Affairs and Security Policy Josep Borrell, and the EU Special Representative for the Belgrade and Pristina Dialogue, Miroslav Lajčak, it was announced that an agreement had been reached regarding the implementation of the Agreement on the path to the normalization of relations between Serbia and Kosovo. In anticipation of further steps in the implementation of the Agreement, there are different interpretations of the agreement from Ohrid and obligations in the coming period among the officials and the publics of the two negotiating parties.

Since the beginning of the dialogue between Belgrade and Pristina in 2011, one of the guiding principles has been the so-called “constructive ambiguity”. It is a frequent diplomatic model of using ambiguous wording and practices in the context of sensitive issues, in order to open space for the negotiating parties to accept politically complex agreements. Essentially, the principle allows actors to creatively interpret certain provisions of the agreements and present them to the domestic public in specific ways. However, within the dialogue between Serbia and Kosovo, “constructive ambiguity” over time became more part of the problem than the solution, precisely because of different and conflicting interpretations of the accepted agreements, the implementation was slowed down or stopped, and they remained a “dead letter on paper”.

British diplomat Robert Cooper, one of the architects of the dialogue process facilitated by the European Union, emphasized that constructive ambiguity is a good way to start the dialogue, but that in the later stages, it is necessary to have an agreement that both parties fully understand and implement. Nevertheless, it is clear that after the acceptance of the Agreement in Brussels and then the Annex on implementation in Ohrid, which was intended as a new, major step towards the ultimate goal of the comprehensive normalization of relations, there is no agreement between Serbia and Kosovo in the interpretation of the Agreement effects and the assumed obligations. Instead, almost contradictory statements of the highest officials can be seen.

Serbian side: No signature on the Agreement and implementation up to the „red lines

Already at the press conference the day after his return from Ohrid, the Serbian president presented the position of the Serbian leadership. Aleksandar Vučić, just like after the meeting in Brussels a month earlier, particularly emphasized that there was no act of signing and that it will be difficult to prove in a formal and legal sense that the agreement exists without clearly expressed consent. A significant part of the reason for the above argumentation is, certainly, in preserving the political rating and reducing the potential dissatisfaction of public opinion.

From the Serbian point of view, Kosovo is not an internationally recognized state (and this Agreement does not make it so either), and therefore it is not possible, nor is there a desire to make international legal agreements with Kosovo. However, Vučić pointed out that Serbia is ready to work on the implementation of accepted and assumed obligations from the proposed Agreement.

As a result of this situation, a debate has been opened in the public and among experts about the legal obligation of the Agreement, primarily bearing in mind the provisions of the Vienna Convention on the Law of Treaties, which provide that the acceptance of the agreement can be equated in terms of legal consequences with formal signing, and the latter’s explanations by foreign mediators.

When it comes to the actual steps in implementation, both President Vučić and Minister of Foreign Affairs Ivica Dacić reiterated that Serbia will apply only those parts that do not cross the red lines. One such red line is Kosovo’s membership in the United Nations. Although it is clear that potential membership in the UN, due to the admission procedure, does not depend exclusively on Serbia and Kosovo, this interpretation is in direct opposition to the literal reading of article 4 of the Agreement on the Path to Normalization, which stipulates that Serbia will not oppose Kosovo’s membership in international organizations and Kosovo officials have already reacted negatively to it.

Another point of primary interest of the Serbian leadership in the context of the Ohrid agreement is the formation of the Association of Serb majority Municipalities (ASM). The association, whose establishment is foreseen by the Brussels agreement from 2013 and a separate agreement in 2015, is not mentioned directly in the current text, but the obligations of implementing all previous agreements and (in article 7) establishing an adequate level of self-government for the Serbian community in Kosovo are emphasized. The implementation annex envisages that Kosovo starts working on it immidiately. While the President of Serbia claims that in Ohrid he did not agree to the principles offered by Albin Kurti for the creation of the ASM and sends messages that only what was initially agreed upon in the Brussels Agreement is acceptable for Serbia, it is obvious that what the article on the Serbian community in Kosovo represents is the main point of the opposition of the two sides and that this is where the biggest obstacle in implementation can arise.

Kosovo side: No territorial autonomy and de facto recognition

In the same way that Aleksandar Vučić faced criticism from right-wing opposition parties regarding the agreement in Ohrid, Albin Kurti is also under pressure from the leading opposition parties in Kosovo, primarily because of the provisions on the urgent creation of arrangements for the self-government of Serbs in Kosovo.

Presenting the agreement in the Kosovo Assembly, Albin Kurti claimed that it was the maximum he could achieve for Kosovo under the existing circumstances. According to him, article 7 on the position and self-government of the Serbian community (as he calls it) does not imply any territorial autonomy or ethnonational association, which would be in contradiction with the Kosovo Constitution. Kurti, who at one time built hisopposition political career by opposing the Brussels agreements and provisions on the ASM, now guarantees that the future community will not have executive powers nor will it mean that a parallel institutional structure of government is formed in Kosovo.

Focusing mostly on this domain of the Ohrid Annex to the Agreement, Kurti also presented an interpretation according to which the reference to the model within the framework of the Council of Europe (in article 7) implies that the mandate of self-government for Serbs will not exceed the Framework Convention on the Protection of National Minorities adopted by the Council of Europe. This “reading” of the Agreement is a completely different extreme compared to the Serbian side and significantly below the standard of requirements that the community should be established with broad powers and under the signed agreements.

Another specificity that presents itself differently to domestic public opinion is the legally binding nature of the Agreement and its broader meaning in the context of the recognition of Kosovo’s independence. Kurti believes that articles 1-4 actually represent a de facto recognition of Kosovo. During this week’s visit to Tirana, he stated that, although the agreement was not signed through “fault” of the Serbian side, and that is why he is skeptical about its implementation, it led to de facto recognition, i.e. mutual recognition of Serbia and Kosovo (which in previous years was a maximalist platform from which Kurti started, and which Serbian officials reject).

The EU as a key actor in monitoring the implementation of the Agreement

While Serbian and Kosovan officials are sending different messages regarding the accepted agreement and concrete obligations, such as the creation of the Association of Serb majority Municipalities, which represents a red line for both parties in the negotiations, the role of the European Union in implementing and ensuring a fundamental shift in mutual relations is of crucial importance.

The implementation process proved to be the weakest element of numerous earlier agreements within the dialogue, and certainly one of the reasons was the transfer of the “constructive ambiguity” from the text to practice, where then different interpretations of the agreed obligations became “destructive” for mutual relations and the implementation of the agreements. In this Agreement, it is specified that the Joint Committee for monitoring and implementation will be formed, which will be chaired by the European Union, within 30 days.

The European Union invested its credibility and significant efforts in achieving this (compromise) agreement, therefore its full realization will be a test for the EU. For now, European officials and High Representative Josep Borrell strive to present to the public the obligations of Serbia and Kosovo and clarify doubts that arise as a result of different interpretations coming from Belgrade and Pristina.

After the meeting in Ohrid, Borrell pointed out that the Agreement on normalization is legally binding even though it has not been signed, and that the importance of the agreement is measured primarily by its implementation, not by its signature. Provisions from the Agreement and Annex will be included as benchmarks in Chapter 35 of Serbia’s negotiations with the EU and the program of the EU Special Group on Normalization when it comes to Kosovo.

In the previous days, Borrell’s cabinet explained that this means that Serbia and Kosovo are contractually obliged to implement the measures if they want to make progress towards the European Union, where the absence of implementation would mean abandoning the European path. Without wanting to comment on the statements from Belgrade and Pristina, it was pointed out that the agreement must be fully implemented and that the parties have no room to choose what they want and what they don’t want to fulfill because they expressly accepted the framework.

In connection with the main stumbling block – the establishment of self-government for the Serbian community in Kosovo – it was emphasized that the EU clearly presented the platform in the Ohrid Agreement and the Annex and that accordingly, with the assistance of the European Union, the two sides will agree on specific solutions.

It is an obvious intention of the EU, supported by the USA, to achieve what has been accepted step by step in the coming period, and for the sake of that goal, it will be necessary this time to respect the deadlines and prevent the destructive influence of different interpretations of obligations of the two parties on the implementation process.

Igor Novaković, Director of Research at the ISAC Fund, believes that the essential ambiguity was one of the problems in the dialogue and for the implementation of the agreements, but adds that the impression is that behind closed doors in Ohrid, it was precisely known what was accepted.

“Certain provisions, above all regarding the implementation of agreements that were reached earlier, are quite clear, and the problem arises because, first of all, Pristina is trying to reinterpret the obligations to sell them politically on a domestic level,” Novaković points out.

Therefore, for the realization of the Agreement, which according to Novaković can be seen as the second basic agreement on normalization that continues the Brussels one from 2013 and which carries a primarily political obligation, the role of the European Union as an interpreter of what was agreed will be important.

“Nevertheless, along with the European Union, the United States of America will be the ones that will enable the effective implementation of the Agreement,” concludes Igor Novaković.

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