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The uncertain future of the Association of Serb majority municipalities in Kosovo
The agreements signed on the 25th of August 2015 by the Serbian Prime Minister Vučić and his Kosovar counterpart Isa Mustafa under the European mediation of Federica Mogherini are based on the Brussels Agreement reached on the 19th of April 2013 between Ivica Dačić and Hashim Thaçi. It was a 15-point "First Agreement of Principles Governing the Normalisation of Relations", aimed at integrating Serb-majority municipalities in Northern Kosovo into the Kosovo legal system, while providing certain guarantees. Professor Enrico Milano considers the first Brussels agreement to be of great political importance for the relations between Serbia and Kosovo and to have major implications for international law [1]. In this context, Milano questioned the implicit recognition of Kosovo as a state. Two elements seemed to foreshadow it: the reference in the agreements to the Pristina’s authorities as the "central authorities", which therefore excludes Belgrade’s, and the fact that it is not allowed to appeal from the Kosovan judicial authorities to any superior Serbian Courts, which implies Serbia’s recognition of a self-standing and self-contained Kosovan legal order [2].
Four documents were signed in August 2015: the establishment of the Association/Community of Serb Majority Municipalities in Kosovo, the supply of electricity, telecommunications, and freedom of movement through the Ibar river[3]. The document on the Association/Community consists of 22 points/articles, divided into seven sections: legal framework; objectives; organisational structure; relations with the central authorities; legal capacity; budget and support; general and final provisions[4]. It should be noted that the term “central authorities”, referring to Pristina’s authorities, returned to the document, which allows supposing Serbia’s implicit consent to no longer consider Belgrade as the ultimate centre of authority over Kosovo.
The Association will consist of ten municipalities with a Serbian ethnic majority, accounting for almost one hundred thousand people. However, due to the Serbian boycott of the 2011 census the real ethnic percentages are unknown in at least three of them [5]. It is possible that in the future the Gorani community will join, which is a Slavic ethnic group of Sunni Islam faith speaking a Torlakian dialect in the south of the country. The statute of the Association/Community was supposed to be drafted by the end of 2015 but a major political crisis occurred. Serbs from northern Mitrovica have stated they were inspired by the Italian system of Alto Adige/Südtirol. The Serbian government welcomed the creation of this union and considers it a great political success that guarantees further rights and protection to the Serbian community in Kosovo. Pristina’s government, on the other hand, rushed to underline that the Association and its statute will have to be in compliance with the Kosovar Constitution and is subordinated to the local legal order[7]. Furthermore, even though the agreement concedes an Assembly, a President, a Vice-President, a Council and a Board to the new Association, Pristina declared that in its interpretation of the document no executive power of the new entity was recognised.
A distinguished analysis by Tanasije Marinković, professor of Constitutional Law at the University of Belgrade, highlights the ambiguities of this document. As the official version is written in English, instead of Serbian and Albanian, it follows the Balkan tradition of assisted constitutionalism, started in 1995 with the Bosnian Constitution written in English, in the form of Annex 4 to the Dayton Agreements It could be argued that a text in English protects from possible discrepancies in interpretation, as it might be the case if written in one of the two local languages. Yet the text does not seem to be written by a native speaker since it lacks terms typical for legal English (e.g. “shall”). On a political level, the term Community seems to prevail, but according to Marinković, Association is more accurate. The term Community implies a territorial link and major legal integration, whereas this agreement only grants greater local autonomy. Despite having its own flag and a managerial board, it is not comparable with other entities, such as the Republika Srpska in Bosnia and Herzegovina.
The document defining the Association is inspired by the European Charter of Local Self-Government, already quoted in the first agreement in 2013 [8]. More specifically, the Association/Community can be set in article 10 of the Charter, addressing the right of association of the local communities. This article allows the municipalities to associate “to form consortia with other local authorities in order to carry out tasks of common interest […] within the framework of the law” [Kosovo law, e.d.]. Nevertheless, as professor Marinković underlines, the 2015 text does never explicitly mention competences, but only objectives. The only conceivable competences are mentioned in article 4, points B, C, D, E and G. It is worth noting that the competence proposed in point F has been scrapped from the final version. These points regard the exercise of full monitoring of the local economic development, education, healthcare and urban/rural planning, in addition to the adoption of measures to improve local living conditions for people returning to Kosovo. However, point (G) is ambiguous and open to several interpretations. No more competences result from the text. At least formally, the Association will not have the power to exercise competences, but only to monitor/supervise (“full overview”) the activities of the municipalities on these objectives.
Another critical point is found in article 6.a, which states that “[a]ll amendments to the Statute, rules of procedure and all necessary regulations and decisions adopted by the Assembly will be applicable to its members unless one of its members formally expresses a different decision". It is not clear from the text whether a member municipality of the Association will have the power to veto or just the prerogative to exercise an opt-out clause. All the decisions of the Assembly will pass through such a process and, in case it will be interpreted as a right to veto, any municipality will be able to paralyse the entire body. Marinković thinks this as an element, which helps defining this constitutional hybrid as an association rather than a community. Paradoxically, article 19 requires a 2/3 majority in the Assembly for the dissolution of the body. Therefore the dissolution of the body is easier than taking any other decision within it. According to Marinković, it is primarily the lack of independent financial resources, which justifies the use of the term “Association” rather than “Community”. Point B of article 17 mentions income and revenue obtained from the services provided by the Association, but it is not clear what services. If the Association does not exercise any direct power, it cannot provide any service. Furthermore, the possibility of imposing taxation on self-financing is not considered. Therefore, the Association will depend on donations from the member municipalities, transfers from the central authorities and, above all, on contributions from Serbia[9].
Much will depend on the statute and the harmonization with Kosovo’s legal order. Pristina’s Constitutional Court will rule on the legitimacy of the text, which could even overrule Kosovo’s Constitution. In fact, article 21 states that its introduction is through a legislative decree, without parliamentary ratification. Marinković refers to the Latin maxim cotidie est deterior posterior dies, declaring it is not a win-win agreement, but admitting that both sides have limited political damages and obtained something for the respective public opinions. Among academics and analysts the opinion is that Serbian politicians, first and foremost Vučić and Dačić, have understood that the Kosovo issue is no longer central to the Serbian political debate and, despite the public insistence of territorial integrity, they implicitly surrendered to the idea of an independent Kosovo, over which Serbia will no longer exercise sovereignty, but only influence the protection of the Slavic minority. Responding to the establishment of the Association, the Albanian minority in Serbia, located in the municipalities of Preševo, Bujanovac and Medvedja, has declared the establishment of a similar association, which aims at obtaining the same rights than the Serbs in Kosovo, with a police force and an autonomous legal order[10]. Nevertheless, the Foreign Minister Dačić warned the Albanians to not “play with fire” and to respect the Serbian constitution. Dačić denied any parallelism between the Association and the initiative in the Preševo valley[11].
The implementation of the agreement is likely to be difficult. The oppositions showed activism and aggressiveness unprecedented in Kosovo’s political history. The ultranationalist movement Vetëvendosje (Self-determination) and the party Alliance for the future of Kosovo (AAK), led by the former Prime Minister Ramush Haradinaj, have strongly criticized Prime minister Mustafa, with massive street protests and the use of tear gas in the Parliament.. They fear a de facto federalization of Kosovo, with the chance for Serbia to interfere in the decision-making processes and to keep the former province in a legal limbo. There is the concrete possibility that, due to the ambiguity and the vagueness of the text, this constitutional hybrid transforms into an autonomous entity, under the pretext of the protection of minorities and helped by funding from Belgrade. In the future, two external actors will play a more decisive role, the European Union and the United States, who can still decide the fate of the government in Pristina.
* Matteo Pugliese is an international affairs analyst with a focus on the Balkans and Caucasus areas. This article was originally published in Italian by ISPI (Italian Institute for International Political Studies).
References:
1. E. Milano, Formazione dello Stato e processi di state-building nel diritto internazionale, Kosovo 1999-2013, pag. 299, Napoli, Editoriale Scientifica, 2013
2. E. Milano, op. cit., pag. 303
3. http://eeas.europa.eu/statements-eeas/2015/150825_02_en.htm
4. http://eeas.europa.eu/statements-eeas/docs/facilitated-dialogue/150825_02_association-community-of-serb-majority-municipalities-in-kosovo-general-principles-main-elements_en.pdf
5. J. Petersen, ECMI: Minority figures in Kosovo census to be used with reservations, infocmi.eu, 8 January 2013
6. "South Tyrol model for Serb municipalities", B92.net, 10 novembre 2014; Goranci: Ne želimo u Dragaš već u Zajednicu srpskih opština, Blic online, 8 November 2013
7. V. Hyseni Kelmendi, Kosovo: nasce l'Associazione delle municipalità serbe, Osservatorio Balcani e Caucaso, 1 September 2015
8. First agreement of principles governing the normalization of relations, art. 4, Bruxelles, 19 April 2013
9. General principles/main elements, art. 17 l. D, Bruxelles, 25 August 2015
10. Ethnic Albanians set up association of municipalities, B92.net, 14 September 2015
11. Dacic warns Albanians in south "not to play with fire", B92.net, 11 September 2015