foreignpolicy.com

Kosovo Has a Deal With Serbia—if the United States and Europe Can Save It

Edward P. Joseph

10–13 minutes

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Deal or no deal? That's the question baffling the Balkans.

After a pressure-packed summit on Saturday between the leaders of Kosovo and Serbia, the EU's foreign-policy chief, Josep Borrell, proclaimed, "We have a deal," one that promises to lead the two antagonists towards finally normalizing ties. But Serbian President Aleksandar Vucic refused to sign the ambiguous EU-brokered text and has since made statements qualifying and even abrogating key commitments.

Can Vucic ignore Belgrade's obligations in the implementation annex produced in Ohrid, North Macedonia, as well as the rest of the agreement negotiated in Brussels on Feb. 27, which the Serbian president also refused to sign? Why should Kosovo Prime Minister Albin Kurti immediately establish unspecified guarantees for Kosovar Serbs if Kosovo does not know for sure that Serbia will uphold its end of the bargain? Does Serbia tacitly recognize Kosovo under the agreement, or does this depend on further steps?

In short, a cloud of uncertainty hangs over the most important negotiations in the Balkans in more than 20 years. The Kosovo question sparked the violent dissolution of Yugoslavia in the 1990s, exposing the inability of the European Union to tackle security problems in its backyard. The standoff between Belgrade and Pristina is at the heart of the multi-decade transatlantic struggle to consolidate the region into the Western order, creating ample opportunity for Russia and China.

The torturous Western diplomacy between Serbia and Kosovo will surely come up during Chinese President Xi Jinping's three-day visit in Moscow. Whatever differences the two autocrats have over the war in Ukraine, Beijing and Moscow are firmly aligned against Kosovo's independence. Russian President Vladimir Putin and Xi will coordinate efforts to undermine the agreement, leaving Kosovo in limbo, the region in turmoil, and Serbia as a shared strategic partner of both Russia and China.

Given what's at stake if the agreement fails, this is not the time for wan congratulatory statements and standard rhetoric about the responsibilities of the parties. It is now Washington and Brussels—not just Belgrade and Pristina—that have to step up to their own responsibilities, particularly given the ambiguities tolerated in the deal. Three steps are vital to creating a foundation for success.

First, the EU must drop the pretense that it is only a facilitator between the parties—and Washington must drop the pretense that it is only a supporter following the EU's lead. The agreement itself includes "EU Proposal" in its title—one fully backed and advanced by the United States.

For the moment, Borrell maintains that implementation is up to the parties, reducing the EU's role to monitoring. In fact, no party has more formal obligations under the Brussels-Ohrid agreement than the EU itself. There are no less than five distinct tasks that the EU has accepted. None is more important than the twice-mentioned commitment for the EU to "chair" a joint committee to ensure and supervise the implementation of "all provisions." With a strict 30-day deadline to establish the Joint Monitoring Committee, Brussels will have to show uncommon mettle. Implementation requires decisive action—not ambiguity designed to avoid it.

Washington's promised active engagement in this early implementation test is essential. The Biden administration repeatedly pressured the Kosovo government over autonomy for the Kosovo Serb community. Belgrade's demand for "the Association of Serb majority municipalities" has nothing to do with the welfare of Kosovar Serbs and everything to do with undermining Kosovo's sovereignty. The reality is that autonomy is premature, given Serbia's influence over the Kosovar Serb polity and Belgrade's active hostility toward its neighbor.

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Having pressed Kosovo to give up its only leverage with Serbia, the onus falls on the United States and EU to confine the scope of "self-management" to the needs of the Serb citizens of Kosovo, not the ambitions of Belgrade or its proxies in Kosovo's north. Kosovar Serbs desperately need autonomy—from Serbia as much as within Kosovo—in order to chart a fully successful future in the country.

Second, the EU must eliminate any lingering doubt about the binding nature of the agreement and all its provisions. Prodded by hasty commentary on the internet, Kosovar Albanians are worried that Vucic can walk away from the agreement because he didn't sign it, or simply choose those provisions he wishes to apply. Western officials have indulged Vucic in his dissembling due to the autocrat's need to face domestic critics. If Vucic is allowed to distort the terms or even the status of the agreement, the chances of implementation plummet.

Serbian citizens deserve to know the truth—and Vucic can survive it. When it comes to treaties and other agreements between states, what counts is the consent to be bound under international law. As Vucic has acknowledged, a signature can manifest this but is not essential. Article 11 of the Vienna Convention on the Law of Treaties makes this clear: "The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed."

The plain text of the EU-mediated agreement—the basic agreement and the annex—shows the clear intention of the parties to be bound, comprehensively. In the second point of the annex, the parties "fully commit to honour all Articles of the Agreement and this Annex, and implement all their respective obligations stemming from the Agreement and this Annex expediently and in good faith."

This is strikingly different from the 2020 Washington agreement that was signed by Vucic and former Kosovo Prime Minister Avdullah Hoti in the Trump White House. That nonbinding deal didn't even properly name the parties, while the Brussels-Ohrid agreement openly refers to Kosovo and Serbia and labels them "the Contracting Parties." Unlike the grab-bag Trump accord, the Brussels-Ohrid texts are coherent. A preamble frames the core legal and political issues. The Ohrid annex includes several deadlines and a formal implementation mechanism—all proving the clear intention to be bound under law.

As the U.N.-deputized mediator, the EU is fully authorized to determine whether Vucic and Kurti assented to both documents without reservation. Gabriel Escobar, the U.S. State Department deputy assistant secretary overseeing the Western Balkans, has backed the EU position, insisting that the agreement is "legally binding."

Words are not enough. Brussels must follow through and formally amend the EU accession processes for Serbia and Kosovo to reflect their new obligations. To make it clear to the parties—and to Russia and China—that there is no ambiguity about the Brussels-Ohrid agreement, the EU should immediately register it with the U.N. Secretariat. This is fully consistent with the U.N. General Assembly's own call for "every treaty or international agreement, whatever its form and descriptive name … as soon as possible [to] be registered." This applies even to an "agreement that is being provisionally applied prior to its entry into force."

Swift registration will serve notice to Belgrade and Pristina that the EU will not tolerate gainsaying the content of the agreement—as Vucic has done, denying that Kosovo has a path to U.N. membership.  Belgrade should have no qualms with registration at the U.N., given that Serbia launched the U.N. General Assembly process in 2008 that ultimately gave the EU its mandate over the dialogue with Kosovo in 2010. Indeed, the 2010 U.N. General Assembly Resolution, co-sponsored by Serbia, creates an implied opportunity for the EU to report on progress in the dialogue to the U.N.

Finally, Washington must press its EU partners to tackle the biggest loophole in the agreement: the denial to Kosovo of any true European path. Five EU states—Cyprus, Greece, Romania, Slovakia, and Spain—stubbornly refuse to recognize Kosovo, preventing Pristina from even applying for membership in the EU or NATO. It remains entirely unclear whether Serbia's de facto recognition in the Brussels-Ohrid agreement will lead the non-recognizers to change their stance. This is where formalities matter. Serbia's signature and, even better, ratification of the agreement could incline fence sitters to take the long-overdue leap and recognize Kosovo.

Time is of the essence. The United States and EU have now committed their credibility to an agreement that Russia and China have every interest in subverting. Getting just the four NATO non-recognizers—which excludes hard-liner Cyprus—to change their stance would make the Brussels-Ohrid agreement a game-changer; leaving Kosovo only partially recognized in Europe will leave the current, desultory game in place. If the process drags on into 2024, the fear is that a distracted Washington will lose focus, allowing the process to lapse back into crisis management.

The Biden administration needs to think outside the box. One approach is to convince Ukraine to recognize Kosovo on the basis of the Brussels-Ohrid agreement, presenting the non-recognizers with an awkward challenge: If the country whose borders are being savaged by a nuclear-armed foe can recognize Kosovo, why can't the likes of Spain do so as well?

Close transatlantic coordination and focus have brought Serbia and Kosovo to the verge of a breakthrough. With a bit more effort and imagination in the United States and Europe, the entire region can cross the threshold, permanently insulating the Balkans from Russian and Chinese influence.