28 Mar Kosovo-Serbia Agreement on the Normalisation of Relations: Not Signed but Binding, Not Formally on Recognition but with Clear Elements of Implicit Recognition
[Kushtrim Istrefi is assistant professor of international law and human rights at Utrecht University, substitute member of the Venice Commission, and senior peace fellow with the Public International Law and Policy Group (PILPG).]
Philip Allot once said that an international agreement “is a disagreement reduced to writing… Parties to an international agreement enter into negotiation with different ideas of what they want to achieve. Negotiation is a process for finding a third thing which neither party wants but both parties can accept”. These words best describe the complexity and content of the recent agreement reached between Kosovo and Serbia. Serbia did not want to recognise Kosovo formally and explicitly, but the agreement provides for recognition of Kosovo’s State attributes and its international subjecthood. It also did not want to sign the agreement, but it agreed to it. Kosovo wanted a formal and mutual recognition from Serbia, and no creation of the Association of Serb majority municipalities in Kosovo, but it agreed to an implicit recognition and to the creation of the Association. In this analysis I will unwrap what is in the agreement, its legal nature, and the challenges that I see with regards to its future implementation.
Content of the Agreement
(i) Implicit Recognition and Accession of Kosovo to International Organisations
On 27 February 2023, Kosovo and Serbia agreed on the EU proposed agreement on the normalisation of relations, and on 18 March on the annex to this agreement known as the Implementation Plan. While both Parties have refrained from celebrating it, I consider this Agreement to be the most ambitious and promising one to date between Kosovo and Serbia.
The Agreement has a preamble and eleven articles. I argue that the following provisions of the agreement provide for recognition by Serbia of Kosovo’s State attributes, and for accepting that the two are separate subjects in international relations:
The Parties shall develop normal, good-neighbourly relations with each other on the basis of equal rights. Both Parties shall mutually recognise their respective documents and national symbols, including passports, diplomas, licence plates, and customs stamps.
Both Parties will be guided by the aims and principles laid down in the United Nations Charter, especially those of the sovereign equality of all States, respect for their independence, autonomy and territorial integrity, the right of self-determination, the protection of human rights, and non-discrimination.
In conformity with the United Nations Charter, the Parties shall settle any disputes between them exclusively by peaceful means and refrain from the threat or use of force.
The Parties proceed on the assumption that neither of the two can represent the other in the international sphere or act on its behalf.
Serbia will not object to Kosovo’s membership in any international organisation.
The foregoing refers to equal rights, UN Charter principles of sovereign equality of States, obligation to settle disputes through peaceful means, and to refrain from the threat or use of force. All of them constitute UN Charter principles reserved for the regulation of relations between sovereign States. Furthermore, under Article 4 Serbia lifts any claims over Kosovo in international relations and representation, accepts that they are two separate subjects, and takes an obligation not to object to Kosovo’s membership in any international organisation. Considering that a State represents its entire territory in foreign relations, the agreement implies that Serbia has recognised Kosovo as a separate subject of international law without calling it a formal recognition. It is important to note that under Article 4 Serbia has agreed not to object to Kosovo’s membership in any international organisation. While President Vucic has claimed that this does not include the UN, the text of the agreement does not provide so.
In addition, the practical effect of Article 4 would mean that, when Kosovo applies to international organisations, Serbia will either remain silent or support Kosovo’s membership. Such a response by Serbia would also lead to a form of acquiescence. As the ICJ has clarified in the Case Concerning Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
Under certain circumstances, sovereignty over territory might pass as a result of the failure of the State which has sovereignty to respond to conduct à titre de souverain of the other State or … to concrete manifestations of the display of territorial sovereignty by the other State … Such manifestations of the display of sovereignty may call for a response if they are not to be opposable to the State in question. The absence of reaction may well amount to acquiescence.
Further the ICJ has clarified that acquiescence “is equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent . . . That is to say, silence may also speak, but only if the conduct of the other State calls for a response”.
It appears that, while recognition is not mentioned in the Agreement, it is implied (for different views, see Marko Milanovic’s opinion). To avoid an explicit recognition, the preamble provides that “Proceeding from the historical facts and without prejudice to the different view of the Parties on fundamental questions, including on status questions”. It is hard to reconcile this part of the preamble legally or logically with Articles 1-4. It appears as if Serbia shares different views from Kosovo on its status but yet agrees to recognise its State attributes and separate subjecthood in international relations. Perhaps this contradiction illustrates the challenge in reaching an agreement between parties that share fundamentally different views, and the importance of creative legal drafting. It is not unusual that in such politically sensitive cases, parties include such contradictory language to, on the one hand, make actual concessions in the dialogue, and, at the same time, secure a language to present before its own public. The Agreement seems to be partially inspired by the experience of the two Germanys who in the 1972 concluded the Basic Treaty, in which, as Marc Weller notes, “they accepted that there would remain differences in their interpretation of their respective legal status. However, they also agreed to what amounted to de facto recognition.”
(ii) Association of Serb Majority Municipalities
While the above speaks mostly about obligations that Serbia undertakes under the agreement, Article 7 obliges Kosovo to “ensure an appropriate level of self-management for the Serbian community in Kosovo”. Although these commitments were supposed to be elaborated further in the Implementation Plan, it remains unclear what constitutes “self-management” and even more so what is an “appropriate level” of self-management for the Serbian community in Kosovo. The Quint States (the US, the UK, France, Germany and Italy) suggest that Article 7 concerns Kosovo’s obligation to establish the Association of Serb Majority Municipalities, a commitment emanating from the 2013 and 2015 agreements reached between Kosovo and Serbia. The Constitutional Court of Kosovo found most of the 2015 agreement on the Association of Serb Majority Municipalities to be unconstitutional but maintained that the Association must be formed in accordance with the 2013 agreement and the Kosovo Constitution. It must be noted that the 2023 Agreement also provides that all prior Kosovo-Serbia dialogue agreements remain in force. Hence, there is an expectation that Kosovo establishes a form of self-management for Serbian community in Kosovo.
The EU Facilitator, Miroslav Lajcak, has confirmed that it has provided 15 European models of self-management to Kosovo institutions to consider a suitable model for Serbian community in Kosovo. The EU and the US have also confirmed that the Association should be established in accordance with the judgment of the Kosovo Constitutional Court.
The 2023 Agreement does not clarify, however, whether Kosovo can choose any model of self-management, or whether Serbia or the EU must agree to a specific model.
Kosovo has feared that Serbia is trying to establish a legal entity within Kosovo that would be similar to that of Republika Srbska in Bosnia and Herzegovina. However, one may argue that as long as Kosovo institutions are in the driving seat of modeling a form of self-management, there should be no fear in a product that they will create. Furthermore, pursuant to the 2015 agreement on Association, Kosovo could foresee a constitutional review of the Statute on Association prior to it entering into force. Be that as it may, Kosovo has agreed to ensure a form of self-management for Serbian community in Kosovo, including the creation of the Association of Serb majority municipalities. As a result, it has entered into an obligation to deliver on this point.
(iii) Kosovo’s Accession to the EU
The Agreement no longer uses the asterisk when referring to Kosovo (the one indicating that Kosovo’s status is in line with the SC Resolution 1244 and the ICJ Advisory Opinion on Kosovo), nor it refers to parties as Pristina and Belgrade. The Agreement clearly refers to both Parties as being Kosovo and Serbia.
It is interesting to note that this is the first agreement in which Kosovo’s accession to the EU is explicitly mentioned. Due to non-recognition of Kosovo by five EU Member States (namely, Spain, Greece, Cyprus, Slovakia and Romania), so far, the EU has used such terms as EU path, rapprochement, or prospect in the context of Kosovo. One may argue that the term accession in the 2023 Agreement implies that the EU Member States (which have supported the Agreement) agree to Kosovo meeting the subjecthood requirements to become a member of the EU in the future. It is unclear whether there is an expectation that these five EU Member States recognise Kosovo at this stage or not. According to Secretary Blinken, the five EU non-recognisers could recognize Kosovo based on the new Agreement.
While this is an agreement between Kosovo and Serbia, it is also an agreement drafted and supported by the EU. Furthermore, the EU is more than a facilitator of this agreement as the Implementation Plan provides numerous obligations for the EU. Among others, the EU has committed to integrating this agreement in the EU accession processes of Kosovo and Serbia, to chair the Joint Monitoring Committee of this agreement, and to organise a donor conference to set up an investment and financial aid package for both countries. Considering the above, the semantic changes indicated above suggest that the Agreement has a potential to impact not only Kosovo-Serbia but also Kosovo-EU relations.
Not Signed but Binding?
The Agreement and Implementation Plan are not signed by Kosovo or Serbia. Kosovo insisted that the agreement be signed but Serbia refused to do so. Yet, the EU High Representative Joseph Borrell has announced that both Parties have accepted the Agreement without changes and have fully committed to implementing it. The lack of signatures has triggered debates in Kosovo, Serbia and beyond on the legal nature of the agreement. Milanovic has also argued that this agreement is not binding partly because of lack of signatures. However, as Anthony Aust explains, it is not uncommon that States adopt unsigned instruments when they agree to sensitive matters and is preferred for internal political reasons. One can assume that, by not signing the instrument, Serbia has found a creative way to manage domestic political reactions. It is interesting to note that, while President Vucic of Serbia has argued that without signature the agreement is not binding, he has also accepted that he will implement the agreement, with a mere exception that he will object to Kosovo joining the UN or recognising it.
In international law the form of international instruments does not determine the validity and binding nature of an instrument, and that signature is not a precondition for parties to enter into international obligations. In the Qatar v Bahrain case, the ICJ found that even minutes of the meeting can amount to an international agreement:
the Minutes are not a simple record of a meeting … they do not merely give an account of discussions and summarize points of agreement and disagreement. They enumerate the commitments to which the Parties have consented. They thus create rights and obligations in international law for the Parties. They constitute an international agreement.
In light of the above, it appears that the EU brokered agreement between Kosovo and Serbia is binding based on the text of the agreement, and the consent given by parties. Furthermore, the EU has committed to integrating the agreement in accession processes of Kosovo and Serbia to maximise the chances of compliance.
Implementation: The Achilles’ Heel
The implementation of the agreement is the Achilles’ heel, and, if not managed carefully, may risk the Agreement as a whole. This is because the Implementation Plan does not sufficiently foresee concrete steps to be taken by Parties and in what sequence. For example, it is unclear whether Kosovo can already now join any international organisation, or whether it should first show signs of willingness to creating a form of self-management for Serbian community in Kosovo.
If the EU pushes Kosovo to start developing a form of self-management for Serb community before supporting it in (at least) the first phases of accession to international organisations, Kosovo may consider such an approach to be unfair and discriminatory. For example, Kosovo is for more than 10 months waiting for the Committee of Ministers of the Council of Europe to take a technical decision to forward the accession request to the Parliamentary Assembly of the Council of Europe. Such a decision would not mean that Kosovo immediately becomes a member of the Council of Europe, but to only start the accession process and determine the membership requirements.
Serbia may claim the same if accession is done without any steps on the issue of self-management. Furthermore, even if Kosovo is willing to adopt a particular model of self-management for Serb community in Kosovo, does it imply that Serbia must agree to a particular model. If yes, Serbia could, for example, bring unrealistic demands and require a form of autonomy for Serbs in Kosovo to simply delay the implementation of the agreement on its part (with regards to accession to international organisations). Given that Parties do not trust each other, it would have been better if the Implementation Plan contained a clear roadmap with sequences and deadlines for actions expected from both parties.
The EU and the US, as key actors that pressurised parties to reach this agreement, must treat these issues with utmost care. If they develop a fair roadmap, it is likely that both Parties will implement it. If they choose to pressurise one side, and appease the other, it risks turning the Agreement into a source of further antagonism and mistrust not only between Kosovo and Serbia but also between each of the parties on the one hand, and the EU and the US on the other hand. Such an outcome, risks burning this hard won and ambitious Agreement, and makes it even more difficult for a future agreement to be achieved.
In the Qatar v Bahrain case, the minutes in question had been signed. That renders your point about minutes per se being binding moot. The whole context has to be evaluated. As asserted by the ICJ (Nicaragua v Honduras, 2007), “evidence of a tacit legal agreement must be compelling.”