It’s the gatekeepers who must keep the gates
A good report and a related opinion piece by Jason Steinbaum, Paul Williams and Sindija Beta is keen on Kosovo Constitution being respected when establishing an ASMM. One can only agree, but…
An interesting new report has just been published by Public International Law & Policy Group (PILGP), on the long, stressful and very costly diplomatic effort to ensure Kosovo establishes in one way or the other, the Association of Serbian Majority Municipalities, which has become an Achilles heel of the decade long dialogue between Kosovo and Serbia.
PILPG is a serious organization has has supported the people (and governments) of Kosovo in many processes, even serving as legal advisors to the Kosovo delegation in Rambouillet talks in 1998. Jason Steinbaum served as Staff Director of the U.S. House Foreign Affairs Committee, Dr. Paul Williams is Professor of Law and International Relations at American University and Co-Founder of the PILGP, while Sindija Bēta is Legal Officer at the PILGP. They know a thing or two about Kosovo constitution and the context of ASMM, thus their opinion matter.
Do read the report and their explanatory opinion piece, but the key point they make is that Kosovo’s Constitution and laws not only “already permit the creation of associations of municipalities, including an association of Serb majority municipalities” but that “Serb-majority municipalities have the necessary legal grounds to form an association akin to the existing Association of Kosovo Municipalities” without necessity of any further action by the Kosovo’s national authorities. They (rightfully) complain of the asymmetrical pressure by US and EU on the Kosovar government and say that “it is time to stop trying to force reluctant parties in Belgrade and Prishtina to engineer the ASMM’s creation.” Instead, folks should step aside and allow it it to happen in accordance with the Constitution, Critically, they do hope that ASMM statute can be “drafted with the support of the U.S might for the best path forward.”
There’s little one can disagree with PILGP and their legal analysis.
However, as a former high-ranking US diplomat once told me, there are political considerations that must be taken into account when discussing legal issues, without necessity of negating or challenging the legal premises.
Firstly: one thing must be said at the onset, every single agreement reached between Kosovo and Serbia — every single one of them — had a basic fundamental premise that it had to follow Kosovo constitution and/or be vetted by the Constitutional Court of Republic of Kosovo. Even the Agreement on the “general principles” for the establishment of the Association, signed in 2015 by then Prime minister Isa Mustafa, which was later found by the Constitutional Court to have over-reached in a number of provisions, had an embedded stipulation that these principles must, indeed, be vetted by the Kosovo Constitutional Curt.
Every single agreement reached between Kosovo and Serbia — every single one of them — had a basic fundamental premise that it had to follow Kosovo constitution and/or be vetted by the Constitutional Court of Republic of Kosovo.
In the important letter co-signed by Derek Chollet, Counselor of the U.S. Department of State and Gabriel Escobar, U.S. Special Envoy for the Western Balkans, the official position of US was spelled out: “As the most pro-Kosovo country in the world, the United States is committed to supporting the people of Kosovo to ensure that its constitutional and legal structure is not undermined.”
EU Commissioner Federica Mogherini was directly facilitating process at that time and has supplied an additional written guarantee to Kosovo government, that Association will “follow the laws of Kosovo” and will have “no executive powers”.
Few years later, the EU envoy Miroslav Lajcak has also insisted: “After agreeing in the framework of the Dialogue, where first the Government has a say, the Statute will be sent to Kosovo’s Constitutional Court for review, which means that also the guardian of Kosovo’s constitution has a say.”
Why don’t we have progress then? Why is Kosovo under public EU sanctions and under strong pressure by the US and QUINT countries to make a move on the Association? Let’s dwell just a bit on history of the debate on Association.
Secondly: sensible people will all agree that Serbia has played a nefarious role throughout this process and has recently taken incredibly dangerous steps by sponsoring the terrorist attack in northern Kosovo. European Parliament has condemned “in the strongest possible terms the hideous and cowardly terrorist attack on Kosovan police officers by well-organized Serbian paramilitaries”.
Serbia does not intend to willfully implement any agreement with Kosovo because all agreements reached so far, including the future desired Final Legally Binding Agreement on Full Normalization (as mandated by the UNGA resolution), will inevitably and unconditionally lead towards Serbia recognizing, if not formal independence of Kosovo (though this used to be professed stance of the Western allies), at least the de facto existence of Kosovo state.
This latter (and lesser) aim became clear from the French-German proposal, which unfortunately deviated and took the form of the unsigned but agreed Ohrid Agreement. This new policy echoed a much earlier proposal of a “compact between Kosovo and Serbia” based on two Germanies model, proposed by Wolfgang Ischinger.
Serbia prefers status-quo to remain. Its’ President professes desire for peace but does everything under the radar screen (or quite publicly) to sabotage any deal.
Kosovo must thus unilaterally engage in dialogue with US and EU on Association, to fulfill the modicum of effort to ensure the tables are turned and the pressure is not only alleviated from Prishtina, but that country can escape from the incredibly dangerous status-quo, in this highly unpredictable global political landscape.
Thirdly, we come to the actual issues I had with the PILGP input.
a. Kosovo’ Serbian majority municipalities, respectively the management team established through the dialogue, did actually, as suggested they should do by PILGP, propose a statute for the Association. This draft was dangerous, blatantly unconstitutional and utterly unacceptable. Prime minister even dismissed the management team after proposing this statute.
b. Western allies of Kosovo then advised Kosovo government to propose a statute. Nothing was forthcoming. Momentum created to potentially help Kosovo enter multilateral organizations was being lost. German Fridrich Ebbert Stiftung proposed a draft to fill the gap. Even Albanian Prime minister Edi Rama brought forth a proposal (not a bad one to boot, mostly based on the Sametinget in Norway). Kosovo government lost few years completely ignoring this important moment — and momentum for Kosovo to put forward something — anything — was lost.
c. Only after a lengthy period of new deadlock, we came to the EU-sponsored draft for the Association, which was embedded in Ohrid framework. Kosovo government supported this draft. PM Kurti even stated that this is the “best draft”, while Speaker of Kosovo parliament stated that that this draft “seems to be in spirit with Kosovo constitution”.
d. Fearing complete collapse of Kosovo bid to become a member of Council of Europe due to the insistence of German and French governments that a draft statute must be sent to the Constitutional Court, Kosovan foreign minister Donika Gervalla Schwartz sent a letter to all her counterparts, stating among other things, that the Kosovo government will draft a new statute “on the basis of a proposal drawn up by the German Friedrich Ebert Foundation in January 2023” and that this statute “will be sent for interpretation to the Constitutional Court of Kosovo by the end of May 2023”.
In this gamesmanship with our own Allies on a statute of Association, which rapidly deteriorated in a game of chicken, we have lost momentum multiple times. Kosovo government have lost several windows of opportunity, both after initial days of Russian occupation of Ukraine and after Banjska attack, to turn the tables and get back to one and only path that would ensure the constitutionality of any Association: send the draft (EU draft, our draft, FES draft — any sensible draft) to the Constitutional Court.
Loss of momentum was not lost on our closest allies. German envoy Manuel Sarrazin dryly noted this week: “In today’s world things change, and if you [Kosovo] lose momentum then don’t complain later that things changed.”
There may be a chance that the new EU Commission and the new envoy on dialogue (former Finnish foreign minister Pekka Haavisto is the last one rumored to take the position) will change the EU stance on necessity of Kosovo taking the first step. Kosovo’s PM Kurti certainly hope so. But there is a far greater chance that Kosovo’s position will further deteriorate after further far right gains in Europe, after US elections and after West has to face two wars in two fronts.
So, PILPG is right. Constitution of Kosovo should be respected. Kosovo government and parliament have no role in formally establishing an Association. The responsibility rests with municipalities and the new Mayors after next local elections in fall 2025. But to help speed up the process and to help Kosovo obtains membership to Council of Europe in May 2025 — and is credibly positioned for Partnership for Peace agreement with NATO — we should go back to square one: allow for the Constitutional Court, the original gatekeepers of our constitution play a role. Sending a draft of an association for the review by the highest Court (in return for clear US and EU commitment on CoE and NATO membership progress), is a small compromise to make to ensure the safety and security of our citizens in this troubled world.
