Photo: Predrag Trokicic
Photo: Predrag Trokicic

A couple of days ago, the newspaper “Danas” published the text of the French-German proposal of the Basic agreement between Serbia and Kosovo, which they received through diplomatic channels. The published draft text was evidently translated from English, and not very skillfully at that. However, after the address of President Vucic on Monday night, when he relatively precisely quoted the provisions of that proposal, it is clear that the text reported by “Danas” is authentic, either completely or with some minor deviations. The same is clear from the interview from earlier that day given by the president of the Assembly committee for Kosovo and Metohija, Milovan Drecun, who, according to his own words, saw the original proposal.

President Vucic also said that this proposal was put before him by the European and US representatives with a sort of ultimatum: accept this or we will suspend the visa-free travel regime for the citizens of Serbia across the EU, stop the EU accession process and cut off access to EU funds, as well as suspend US and EU investment in Serbia, which would cause serious damage to, if not a collapse of the Serbian economy. We cannot know whether the Western envoys really threatened Vucic so severely due to his by now proverbial loose attitude towards the truth. This will remain unknown until some US or European official, or some media with reliable sources in foreign governments, confirms the content of said threats. But let’s assume for the moment that the pressure on Serbia, and most probably similar pressure on Kosovo, really are as severe as he claims.

My goal in this article is to try to explain the essence of the proposed Basic agreement primarily from the standpoint of international law. My intention is not to persuade the citizens of Serbia or Kosovo that the Agreement should (or should not) be accepted. That is a personal matter. My goal, once again, is merely to explain the essence of the proposal, which is:

First of all, it is clear that this is not a final, legally binding agreement between Serbia and Kosovo, in the form of an international treaty, which we’ve been hearing a lot about for the past several months. This is a political agreement – a given word – like all those that preceded it. The draft Basic agreement clearly states that the final legally binding treaty is still to be concluded. Second, the Basic agreement is based on the model of the Basic Treaty between the two Germanies signed in 1972. Although several provisions were copied verbatim, one important difference is that the German document was in fact an international treaty between two states. As a result of signing of the Basic Treaty, both Germanies were admitted to the United Nations, which is highly unlikely to happen with the Basic agreement, as I will explain in more detail. Third, the singing of such a Basic agreement by Serbia wouldn’t entail the recognition of Kosovo as defined by international law, although, in a political sense, just like all previous agreements, it would be another step in that direction, and a recognition of the power of Kosovo to enter into such agreements (which has already happened). In that sense, the Basic agreement doesn’t contain the main demand of Kosovo – recognition – which they need not merely for symbolic, but also for very practical reasons.

Fourth, the main demand of this Basic agreement for Serbia, and also the one we’ve never had before, is to promise not to object to Kosovo’s admission into international organizations. This means primarily the United Nations, although this is not stated explicitly. The main demand for Kosovo – to establish some form of self-government for Serbs in Kosovo – is not new. Everything else in that document is symbolic and generic, which some may regard as important, but ultimately has no real consequences.

So, it seems that the choice before Serbia now is to either agree to stop objecting to admission of Kosovo into international organizations or to suffer the consequences of the refusal. It is important to note here that the admission of Kosovo into the UN, EU or any other organization only partially depends on Serbia. The absence of Serbian opposition doesn’t mean that such admission will automatically happen, because many other states, with interests of their own, actually decide on the matter. On the other hand, the choice before Kosovo is whether to accept an agreement which doesn’t contain recognition and can’t guarantee admission of Kosovo to the UN, but which would force them to act on their existing obligation to establish the community of Serbian municipalities. I repeat, each citizen should decide on their own whether they find this bargain acceptable.

A political Basic agreement based on the German Basic Treaty

As I have already stated, it is clear that the model for the Basic Agreement proposal was the Basic Treaty between the two Germanies (Grundlagenvertrag) from 1972, but it is also clear that, unlike the German case, this is merely a political agreement and not a legally binding international treaty. We can determine this from a comparative review of the text of the Basic Agreement and the text of the Basic Treaty (see here, here and here).

The purpose of that treaty was to normalize relations between West and East Germany. In short, West Germany, despite the constitutional obligation of the state authorities to work towards the unification of Germany, gave up its claim of being the only state authorized to represent the whole of Germany in international relations, according to which it refused relations with other countries that recognized East Germany. The turn of West German policy towards thawing relations with the East (Ostpolitik) led to the conclusion of the Basic Treaty and the admission of both Germanies to the UN in 1973.

Obvious similarities between the two texts can be seen both in the preamble and in the operative provisions of both instruments. For example, paragraph 1 of Article 1 of the Basic Agreement is copied verbatim from Article 1 of the Basic Treaty: “The parties shall mutually develop normal, good-neighbourly relations on the basis of equal rights.” The second paragraph of that article adds an (already existing) obligation specific to the Serbia-Kosovo context: “Both parties shall mutually recognize relevant documents and national symbols, including passports, diplomas, vehicle license plates and customs stamps.” The same applies to the provisions of Articles 2 and 3. Article 4, paragraph 1 of the Basic Agreement was copied from Article 4 of the Basic Treaty: “The parties proceed from the assumption that neither of them can represent the other party in the international sphere or act on its behalf.” But the second paragraph of that article actually contains the most concrete (and for the Serbian side the most difficult) obligation: “Serbia will not oppose Kosovo’s membership in any international organization.”

How do we know that in our case we have a political agreement and not a legally binding international treaty? First, the title of this instrument is an ‘agreement’, which can be both political and legal, while the title of the German instrument, ‘treaty’ (Vertrag), is used exclusively for legally binding conventions. Second, while Article 10 of the Basic Treaty contains a final provision on ratification and entry into force, there is no such provision in the Basic Agreement. Thirdly, and most importantly, Article 6, Paragraph 1 of the Basic Agreement expressly states the following:

“While this basic agreement represents an important step towards normalization, both sides will continue the EU-led dialogue process with renewed momentum, leading to a legally binding, comprehensive agreement to normalize relations.”

Thus, a legally binding, comprehensive normalization agreement is something that is yet to follow the signing of this Basic Agreement. This is only an intermediate step towards that final agreement, just like all previous agreements between Serbia and Kosovo, from the Brussels Agreement, to sitting at tiny desks in Donald Trump’s office, to license plates.

Accepting the Basic Agreement wouldn’t violate the Constitution of Serbia

Regardless of whether signing this Basic Agreement would be a good idea or not, it would not becontrary to the Constitution of Serbia. The Constitution of Serbia in its preamble states “that the Province of Kosovo and Metohija is an integral part of the territory of Serbia, that it has a position of essential autonomy within the sovereign state of Serbia and that from such a position of the Province of Kosovo and Metohija follow the constitutional obligations of all state bodies to represent and protect the state interests of Serbia in Kosovo and Metohija in all internal and external political relations”, but that preamble is not legally binding and is formulated in such a way that it can be interpreted differently, broadly or narrowly. Article 114 of the Constitution further mentions Kosovo in the President’s oath of office, while Article 182 mentions Kosovo as an autonomous province.

By itself, this Basic Agreement on the normalization of relations is not against the Constitution because its nature and content do not radically deviate from the already existing agreements between Serbia and Kosovo. In 2014, the Constitutional Court of Serbia ruled (by 11 votes to 4) that the signing of the Brussels Agreement did not contradict the Constitution, because it was a political agreement and not a legal act. The same applies to the Basic Agreement. I will note in this regard that the much more courageous and competent Federal Constitutional Court of Germany found in 1973 that the Basic Treaty between the two Germanies – which was legally binding, unlike our case – was in accordance with the Constitution (Basic Law) of Germany (BVerfGE 36, 1). I think that for both legal and political reasons it is quite clear that the Constitutional Court of Serbia would do the same if anyone asked it about the constitutionality of the Basic Agreement between Serbia and Kosovo.

The question of constitutionality becomes more serious in the theoretical future case of the conclusion of a final international treaty between Serbia and Kosovo, but it seems to me that we are still far from that.

It’s not recognition (yet)

By signing the Basic Agreement, Serbia would not formally, either explicitly or implicitly, recognize the independence of Kosovo, as the concept of recognition is understood by international law, that is a clear expression of the will of one state to consider another entity as a state. This is despite the provisions of the agreement (Articles 1-3) which, in imitation of the Basic Treaty between the two Germanies, mention the equal rights of the parties, that they shall be guided by the goals and principles established in the Charter of the United Nations, and that they shall settle disputes peacefully. By carefully reading those provisions as lawyers do, it is clear that Serbia at no point calls Kosovo a state.

On the other hand, the preamble of the Basic Agreement clearly states that the parties agree to that agreement “proceeding from the historical facts and without prejudice to the different positions of the parties on basic issues, including the issue of status.” This provision preserves Serbia’s position that Kosovo does not represent an independent state. From a legal point of view, this is simply because, I repeat, there is no clear, unequivocal expression of Serbia’s will to recognize Kosovo’s independence. In other words, if an international court were to decide whether Serbia recognized Kosovo by signing this or previous agreements, the answer would be no.

This is how things stand from a purely legal point of view. From a political point of view, the signing of this agreement, as well as previous agreements that were not purely technical in character, is certainly a step towards the consolidation of Kosovo’s statehood. Whether one considers that desirable or not, it has been a fact of life for some time now.

Admission of Kosovo to the UN and EU

This leads us to the most important provision of this agreement, in article 4, paragraph 2: “Serbia will not oppose the membership of Kosovo in any international organization.” Although the United Nations is not explicitly mentioned here (nor is the European Union), it is clear that this is primarily about the UN and its so-called specialized agencies. Kosovo’s membership in the UN system is of great practical importance. On the other hand, the admission of Kosovo to the Council of Europe, according to Mr. Vucic, is a done deal diplomatically. But that is not the case with the UN (among other things, because the independence of Kosovo has not been recognized by approximately half of the UN member states) nor with the eventual admission of Kosovo to the EU (because so far the independence of Kosovo has not been recognized by five of the 27 EU member states: Spain, Slovakia, Romania, Cyprus and Greece).

According to Article 4 of the UN Charter, states are admitted to that organization by a decision of the General Assembly (passed by a two-thirds majority of the votes of the states present in accordance with Article 18, paragraph 2 of the Charter), after prior recommendation of the Security Council (which must be passed with at least 9 out of 15 votes, without a vote against by any of the permanent members who have the so-called right of veto). Any permanent member of the Security Council, and I am primarily referring to China and Russia here, can prevent Kosovo’s admission to the UN even if two-thirds of the member states want it. On the other hand, admission to the EU, in addition to the entire arduous procedure and the fulfillment of relevant standards, requires the consent of all existing members. This means that any of the current 5 EU member states that do not recognize Kosovo have a decisive influence on Kosovo’s admission to that organization.

It is important to note three key points here. The first is that the provision of the Basic Agreement according to which Serbia “shall not oppose” Kosovo’s membership in international organizations is quite vague and subject to different interpretations. It certainly means that Serbia has a formal obligation not to vote against the admission of Kosovo into, for example, the UN (but does not have to vote yes, either – it can abstain or not vote at all). But it is unclear whether this obligation also includes some advocacy of Serbia towards other countries that may regard Kosovo’s admission as problematic, i.e. does it prohibit Serbia from trying to convince other countries not to vote for the admission of Kosovo?

Second, many countries that do not recognize Kosovo do not necessarily do so because they believe that Kosovo’s independence is against international law, but because they have their own secessionist problems and want to avoid making Kosovo a precedent for solving those problems. Any agreement between Serbia and Kosovo that does not represent a sufficiently clear act of recognition and voluntary consent of Serbia to the independence of Kosovo – which the Basic Agreement is not, as I have already explained – will probably not be enough for those countries. In other words, regardless of whether Serbia is asking for something from e.g. China or India, those countries may conclude that due to their own problems (Taiwan, Tibet, Kashmir) they still do not want to support Kosovo’s membership in the UN, at least until a final binding agreement is concluded between Serbia and Kosovo. The same applies to the process of Kosovo’s admission to the EU.

Thirdly, I would remind readers that the admission of Kosovo to the UN requires the consent of all permanent members of the Security Council, and here I am primarily referring to Russia. Russia’s imperialist project in Ukraine, which includes issues of territorial sovereignty, and its conflict with the West may cause Russia, despite Serbia’s changed attitudes, to still not approve of Kosovo’s accession to the UN. Even if Serbia would now explicitly ask Russia to vote for the admission of Kosovo, in my opinion, Russia would want to wait and use the admission of Kosovo as a bargaining chip in its negotiations with the West, which will happen at some point. In short, I don’t see how Kosovo could be admitted to the UN until there is some kind of solution to the Ukrainian-Russian crisis, and I’m afraid we are very far from that. Or, to put it another way, Serbia’s acceptance of the Basic Agreement does not make it likely that Kosovo can expect to become a member of the UN in any foreseeable future. And I think that both the citizens of Serbia and the citizens of Kosovo must understand this clearly.

Translated by Marijana Simic

Pešč, 06.02.2023.