Besnik Velija
Cambridge University professor, Marc Weller, in an interview for the Gazeta Express, published on Thursday spoke about the Kosovo-Serbia dialogue process, the last high-level meeting in Brussels and the Franco-German proposal.
GE: Professor Weller, you have been a solid friend of Kosovo for a long time. Are you advising the Kosovo government once more, on the normalization dialogue in Brussels?
Professor Weller: In addition to being a Cambridge Professor I am a barrister in the UK. Under the rules that apply to barristers, we are not allowed to discuss who may or may not be a client. I can confirm, of course, that I have indeed been a long-time friend of Kosovo’s, ever since President Rugova asked me to help around 1987 or 88. I attended the Rambouillet Conference, helped support the Ahtisaari final status process that allowed Kosovo to become a widely recognized, independent state, and offered contributions to the drafting of its constitution and several laws. So I have never refused to be there for Kosovo when asked. However, as in this interview, I do not of course claim to speak for Kosovo or have the authority to represent its views. I am offering my thoughts entirely from my own, personal perspective, having had over thirty years of experience on the issue of Kosovo in international diplomacy. After all, I wrote the book Contested Statehood, which offered the main arguments supporting the Kosovo case for independence, also in the International Court of Justice!
GE: Again, it is said that you previously advised President Thaci, and that you are now advising Prime Minister Kurti?
Professor Weller: This really is a confusion one often encounters in Kosovo. If you are advising a government, you are taken to have been signed up by a political party in Kosovo to work with them and for them, and only for them. True, a party leader may hire an individual to be his or her personal advisor, or even legal counsel, for instance in relation to criminal charges. But this is not the case where the role of legal advisor to the state is concerned. I am engaged by many governments around the world to work as an advisor for the state. This is never taken as a personal appointment to the benefit of a particular politician or party.
In my kind of work, you are not the advisor to any particular person or party, however much you may come to appreciate or admire the individuals you then work with. The role is that you are the advisor to the state. And the state continues, even if its democratically elected leadership changes. This advice has to remain consistent, whichever party is in power. Similarly, the position of Kosovo has to remain consistent over time.
GE: Well, then speaking as what we might call a well-informed academic observer, what is your assessment of the Basic Agreement that was discussed in Brussels?
Professor Weller: The agreement offers many things Kosovo wants and needs. In essence, it clarifies that Serbia and Kosovo will conduct their mutual relations in the manner of sovereign states, according to the principle of the UN Charter, even if they do not yet formally recognize one another as states. Serbia will no longer oppose Kosovo’s membership in any international organization. The sides will recognize their respective official documents, like passports. They will even establish permanent mission, which are essentially embassies without using that term. These are all very major concessions from Serbia.
GE: Yes, but there is no actual recognition from Serbia?
Professor Weller: And nobody expected Serbia to suddenly turn around by 180 degrees and formally recognize Kosovo. However, the Basic Agreement provides, as its title makes clear, a ‘path’ towards full normalization of relations. Full, comprehensive normalization expressed in a legally binding way is the official aim of the entire Brussels process. The Kosovo government has succeeded in having it made entirely clear that this includes, in the end, formal recognition. There have been important assurances in this direction and the present government should be given credit for having achieved these. This started with the letter from US President Biden, requiring that the normalization process must be ‘centered on mutual recognition’ over a year ago.
Germany launched its joint initiative with France based on its own experience—the 1972 Basic Treaty between East and West Germany which became the basis of the present agreement with some additions and omissions. German Chancellor Olaf Scholz affirmed: ‘It is clear that an agreement must ultimately also clear up the question of the recognition of Kosovo, because it is not conceivable that two countries that don’t recognize each other become members of the EU.’
This summer, the EU parliament, which is one of the EU institutions to which the EU Facilitators in Brussels are accountable, formally confirmed that this process remains focused on reaching ‘a comprehensive, legally binding normalization agreement based on mutual recognition.’
For Kosovo it is of course important to ensure that this initial first step, in a sense moving towards de facto recognition, is followed by the second step, the actual recognition as a matter of law. The present Basic Agreement is meant to lead to the legally binding agreement on comprehensive normalization, but it does not in itself fulfil the requirement of such comprehensive normalization that must precede Serbia’s accession to the EU—the second step still needs to follow on from the first. And it must do so in a reasonably short time-frame.
If it is clear that there can be no full, comprehensive normalization in the absence of eventual recognition, it is also clear that no state can enter the EU if it maintains territorial claims against its neighbours. There can be no prospect of Serbia entering the EU while it claims that all of Kosovo, a sovereign state recognized by over half the world, is part of its territory. As the EU parliament put it so clearly in its resolution of the summer: ‘Serbia must respect the full integrity and sovereignty of all neighbouring counties and must refrain from influencing their internal political affairs.’
GE: Is this Basic Agreement now binding upon the parties?
Professor Weller: The present status is as follows. Both parties have accepted the text of the 11 Articles and Preamble of the Basic Agreement. That text can no longer be questioned, negotiated or changed. In fact, Kosovo offered to sign that text now, which Serbia refused.
The Agreement will contain an annex that is meant to ensure implementation of all its provisions. That annex remains to be negotiated. Once that annex is agreed, the entire instrument, the Preamble, 11 Articles and the provisions on implementation, can be signed.
There is some debate on whether all of the 11 Articles will enter into force immediately upon signature by the Parties. Some suggest that Kosovo should first perform some obligations, before others become activated. This is meant to build confidence among the Parties.
I would guess that Kosovo will insist that all 11 Articles enter into force upon signature, but that it is ready to agree a sequence of implementation steps where one element might follow upon another in a balanced and clearly timed way. To agree the choreography for this sequencing is very much the function of the implementation provisions.
Of course, building confidence takes two. It does not make sense to insist that only Kosovo has to perform certain obligations first, before others can be implemented. There has to be a balanced approach, showing that both sides are willing to advance their mutual relations. Kosovo has long-standing issues and requirements, backed by binding international commitments and demands, that have never been addressed.
GE: There has been much discussion about the Association of Serb-majority Municipalities here in Kosovo. Did Kosovo give too much in order to secure adoption of the Basic Agreement?
Professor Weller: Well, the first point is that Kosovo agreed to this item in what some regard as a legally binding way in 2013, when it signed, and even ratified the first Brussels agreement. This was done under a different government. However, even if there is now a different government that would perhaps not have concluded the 2013 agreement, international obligations bind states, not the government of the day or the particular leader that signs an agreement. So, whatever relevance the commitments of 2013 may or may not still have, that is the result of the decision of the government that was in power then, but the effects of this decision are still felt.
Kosovo can argue that ten years have passed since the original agreement was concluded. While Kosovo ratified, Serbia did not. Moreover, the Association was only one element of the agreement, and other parts, too, have not been implemented. Some of the modalities for implementation can no longer work, such as the ‘mechanism’ that was supposed to draft the statute of the Association. It also seems unjust to single out this one agreement among the many that were concluded in Brussels since 2013. Only some of these have in fact been implemented. And the party that has generally failed to implement is in fact Serbia.
That said, neither the EU, nor other friends of Kosovo, like the United States, have been willing to let go of the idea of the Association. Indeed, Serbia has tried to use this issue as a key part of its strategy. Rather than blaming Serbia for refusing, finally, to accept the legal identity of Kosovo and recognize it, it has managed to reverse the blame game. Over the past weeks and months, it has been Kosovo that has been put under significant pressure. The EU and others have asserted that Kosovo’s reluctance to adopt the Association is the reason that the entire normalization process is at risk of collapse.
GE: So, has Kosovo now accepted the Association or has it not done so?
Professor Weller: Well, Mr Escobar for the US, and certain EU states are complaining that Kosovo did not accept the Association in Brussels just now. At the same time, the opposition in Kosovo is bashing the Kosovo government for supposedly having agreed to the Association. Both cannot be right.
In fact, what Kosovo has done is to move from simply resisting something it does not want to an overall constructive attitude. Kosovo’s experience in past negotiations has been that if it simply says NO, and takes no further, constructive steps, it will lose out. In the end, others will draft what will be the end result without any inputs from Kosovo. The end result then tends to be imposed upon Kosovo, at times rather unfairly.
This alternative of showing a constructive attitude has already paid off. It is true, the Basic Agreement reminds Kosovo of its obligation to implement all previous agreements. However, in Article 7, it offers a new interpretation of what this means in relation to the Agreement of 2013. There is no longer any mention at all of the term ‘Association of Serb-majority Municipalities’ anywhere in the agreement. Instead, reference is made to cooperation of municipalities principally in relation to service delivery. The term ‘self-governance’ that was initially proposed in the first version of the text has been replaced by the less involved concept of ‘self-management.’
All this suggests that Kosovo can now develop a proposal for a Statute that provides for genuine cooperation among municipalities in Kosovo where a national minority constitutes a local majority. This phrasing avoids a sense of discrimination in relation to other minorities. Fully consistent with the Kosovo constitution, the ruling of the Constitutional court on this issue, and the present law on self-government, this would not be a third layer of government in Kosovo. It would be cooperation of municipalities in exercising the competence they already enjoy under Kosovo law, not the assignment of executive powers to them.
GE: But the US and the EU insisted yesterday that the ASM must still be granted by Kosovo. President Vucic has, according to news reports, insisted that Kosovo must satisfy over 20 conditions or elements which he claims are applicable.
Professor Weller: Well, the EU and the US may perhaps feel that they have to console President Vucic after he was pressed into accepting the text of the 11 Articles. De facto recognition of Kosovo is not something he can easily sell at home. So his hope remains that the issue of the ASM can be used to unsettle Kosovo and to force it into the mistake of obstructing, after all, adoption of the Basic Agreement at the end of the day.
That said, my advice to the EU and to the US would be to measure their words with some care. What happens in Serbia is important, but so is what happens in Kosovo. Injudicious comments that suggests that Kosovo has accepted the old-style ASM are not in accordance with the assurances Kosovo has received, and are likely to cause concern and confusion.
The US and the EU have both encouraged Kosovo to develop and present its own vision of what a functional mechanism for cooperation among municipalities would look like. There was no insistence on using the term ASM. They have all confirmed that we are talking about the exercise, in cooperation, of competences of municipalities that they enjoy already, under Kosovo law. Placing these assurances in doubt may well undermine Kosovo’s confidence in this process. My sense is that Kosovo is unlikely to continue pursuing in good faith its constructive path and draft a credible vision for functional cooperation of municipalities if it feels that the encouragement it has had along this road was not genuine, or is now suddenly being reversed.
So, in short, the battle on this issue is not over. President Vucic will still try to turn this issue into a stick he can beat Kosovo with, hoping to use this issue to disguise the fact that Serbia is the side that is not in fact moving constructively along the path of recognition-centred normalization.
But Kosovo has won an important element of this battle. As already noted, while the Basic Agreement refers to implementation of all previous agreements, it contains a more specific definition of what this means in relation to functional cooperation of municipalities. That Article does not refer to ASM. Instead, it states very clearly what implementation of previous agreements means in relation to this specific issue.
The wording of Article 7 provides for an appropriate level of self-management focused on the ability for service provision in specific areas. Kosovo can deliver this credibly and in good faith, consistently with Kosovo law, and also consistently with the European standards and practices, to which the Article also refers. This still is not easy for Kosovo, and confusing signals from Brussels and Washington may well place this new openness on this issue at risk.
GE: So the fight on this issue will continue?
Professor Weller: Well, this issue will reappear during the next round of discussions on implementation. Serbia will claim that Kosovo has to adopt the old-style ASM and must do so according to a process that was envisaged a decade ago, and that cannot really be resurrected at this time. Kosovo now has the text of the Basic Agreement on its side. This text, which can no longer be changed at this point, determines in Article 7 how the issue concerning functional cooperation among municipalities is to be addressed and resolved. Kosovo may well be in a position to offer very constructive and forward-looking suggestions within the confines of what the Kosovo constitution requires. It can also commit itself to the fullest level of consultation with the members of its ethnic Serb community in the drafting of the Statute, and steps to guarantee that its vision will in fact be meaningful, fully implementing the spirit of Article 7. If Serbia really wants progress, it should consider the proposals that may be forthcoming in a similarly constructive spirit. The same applies to the EU and US.
GE: But what if the EU and US keep insisting on the terms of the 2013 agreement?
Professor Weller: Well, if they want to remove the assurances they have given, and if they want to go against the very text of the Basic Agreement they have strongly pressed Kosovo to accept, they might do that. However, the text of Article 7 is now final. It cannot be changed, and its meaning cannot be argued away. It controls the interpretation of the obligations, including previous ones, in relation to functional cooperation among municipalities.
A more sensible attitude would be to encourage Kosovo through positive incentives to continue on its constructive path and to offer a vision on this issue that is balanced and fair and respects the spirit of what was agreed, originally and just now. There also needs to be a slight sense of realism on their part. They know full well what Kosovo can and cannot deliver on this point. No amount of argument or pressure will change this. If it was me in charge of this process, I would be very hesitant about painting myself into a corner I cannot get out of later—and a corner that may set us all up for the eventual failure of this entire process. This is true especially now, where Kosovo has taken the lead and offered a constructive and balanced way to resolve this issue.
GE: Are you optimistic about this process-will the sides sign the full Basic Agreement?
Professor Weller: We have to get away from tactical games. Serbia still seems to be trapped in the old mind-set of trying to defend a position that have been overtaken by history. Kosovo exists and will continue to exist. Normalization offers an opportunity to try and overcome the legacy of the past and to move forward together. My impression is that Kosovo has made a major shift in its position, offering to address outstanding issues on their merits, and in the interests of the people. Whether Serbia, and the international facilitators of the dialogue, fully understand this and are ready to capitalize on this opportunity remains to be seen.
GE: Thank you, Professor Weller, for sharing your thoughts with us today.
