The Washington Agreement: A Supplementary Document to the EU Efforts in Kosovo?

• Author: Semenov, Andrej
• Position: ARTICLE

Introduction

At the beginning of September 2020, Serbian and Kosovar representatives respectively, Aleksandar Vucic and Avdullah Hoti signed an agreement in the presence of the U.S. delegation led by then-President Donald Trump. The two sides signed the documents separately which left space for different interpretations: Belgrade claims that Serbia signed the bilateral agreement with the U.S., while Richard Grenell, the American representative, that the agreement was signed between Serbia and Kosovo. (1) It seems that the 'agreement' is neither sealed between Serbia and Kosovo, nor Serbia and the U.S. Moreover, since it is not legally binding for any side, it is not an international agreement at all but rather a political statement or conclusion made by all three sides.

The Washington Agreement (WA) was perceived as an "important tool in Donald Trump's re-election campaign," (2) especially considering parts of the agreement on human rights, Hezbollah, and opening embassies in Jerusalem that might be framed to appeal to LGBT and Jewish communities in the U.S. (3) That is not to say that the WA has no political weight, after all, it was signed in the White House, and thus it is difficult that "the spirit of the agreement will be annulled." (4) Additionally, Antony Blinken, the U.S. Secretary of State, and Philip Kosnett, U.S. Ambassador to Kosovo, confirmed for Kosovar media that the WA stays in force. (5)

The point of departure is the paper's contribution to the current literature on Kosovo that revolves around the elitist approach and Brussels Agreement's blueprints for the final settlement. However, the pivotal focus of the paper is to assess the WA in light of the EU-led dialogue between Belgrade and Pristina and the current power-sharing arrangement.

The Literature on Kosovo

The majority of recent literature related to Kosovo can be roughly divided into two approaches: top-down and bottom-up. (6) The paper belongs to the first, top-down or elitist approach, which emerged from the idea that EU leverage visa-vis the conflicted parties combined with the EU membership conditionality could enforce domestic compliance. However, proponents of this perspective recognize the limits of EU influence on domestic reforms. Bergmann and Niemann suggest that lack of coherence within the EU and the spoiler potential of Kosovo Serbs have "a constraining influence on the EU's effectiveness as a mediator." (7) The Kosovo Serbs' spoiler has been expected since the European transformation of Serbia came from purely utilitarian reasons. (8) On the other hand, lack of coherence, while it considerably reduces EU capacity to enforce solution(s), also requires that a consensus as five-member states do not recognize Kosovo's statehood. Despite this division, the EU manages to establish itself as a regional leader and employs a vast array of policy tools to facilitate and promote peace. (9) Therefore, the EU's internal division is not necessarily negative; it might curb 'performance,' but it also gives the EU credibility and leverage to act as a neutral mediator. (10)

It is often argued that impartiality outweighs efficiency when it comes to Kosovo, that a fair and just outcome is more desirable than a unilateral decision. However, the U.S. administration, despite being everything but a neutral side to Kosovo's political status, managed to cajole two sides to sign an agreement that is not entirely deprived of political issues. This paper is, therefore, an early attempt to answer whether the Washington Agreement is a complementary document to the EU efforts.

Background

On June 10, 1999, after 78 days of the NATO campaign, the UN Security Council adopted Resolution 1244. The resolution guaranteed the sovereignty and territorial integrity of Serbia, but also envisaged provisional institutions of the UN with substantial autonomy of "self-government pending a political settlement." (11) In other words, the UN employed an interim mission whose aim was to build and gradually transfer competencies to local institutions which would further lead to the final settlement.

It appeared, however, that the international community was "successful in protecting Serbs as much as the Serbian police were in protecting Albanians:" only in the first year over 200,000 Serbs and other minorities immediately left Kosovo. (12) Another failure of the Interim Administration in Kosovo (UNMIK) and the NATO-led Kosovo Force (KFOR) to protect Serbs in March 2004 meant that it was time "to start a political process to determine Kosovo's future status." (13)After years of vain talks which were often described as a mere charade by the EU officials, Marti Ahtisaari proposed supervised independence for Kosovo. Even though it is not a legally binding document, the proposal serves as a foundation for Kosovo's constitutional framework.

Ahtisaari's proposal is a document that resembles a consociational arrangement. According to Lijphart, there are four elements of the consociational arrangement: grand coalition government, representation, segmental autonomy, and minority veto. (14) No doubts that, on paper, the proposal and Kosovo's Constitution are indeed a power-sharing settlement. However, the documents lack the very pre-condition of the power-sharing arrangement -a deal made by representatives of both sides. Ahtisaari and the authors of the Constitution granted rights to the Serbian minority without giving them a chance to participate in the process. (15) In other words, the Ahtisaari plan and other unilateral decisions have not only failed to persuade Belgrade to recognize Kosovo but also contributed to political tensions between Belgrade and the West. (16) It is further worth emphasizing that Kosovo Serbs, backed by local politicians and Belgrade, entirely boycotted elections until recently and the change occurred only after Brussels' Conclusions and pressure from the EU. Therefore, a glimmer of hope for consociationalism in Kosovo is a result of the EU's efforts, not unilateral decisions favored such as Ahtisaari's Plan and the Unilateral Declaration of Independence (UDI).

The Necessity of the Consensus

The basic provisions of Kosovo's constitution state that Kosovo is a "democratic, unique and indivisible state" whose sovereignty "stems from the people [and] belong to the people," and confirms that the Constitution is the highest legal act of the republic. (17) Contrary to this, the final provisions of the constitution state that the Ahtisaari Plan takes precedence over all legal provisions in Kosovo. (18) The Constitution can, however, be amended by a double majority, which implies that Kosovo supporters and the authors of the Constitution had in mind that the Kosovo Albanians must seek a consensus with the Kosovo Serbs and Belgrade. (19) Additionally, the consensus between the two sides requires the approval of the International Civilian Representative (ICR) since the ICR is "the final authority in Kosovo regarding the interpretation of the civilian aspects of this Settlement." (20) Therefore, any future legal framework of the polity demands the consensus of Kosovo Albanians, Kosovo Serbs, and Belgrade, as well as the EU.

That the consensus among the three parties is conditio sine qua non for Kosovo's future settlement was also confirmed by the International Court of Justice (ICJ). In October 2008, Serbia sponsored the resolution requesting the ICJ to render an advisory opinion on the question: 'Is the unilateral declaration of independence by the provisional institutions of self-government of Kosovo in accordance with international law?'

The ICJ ruled that Kosovo's UDI did not violate international law. However, the court had three options on how to answer the question: a narrow reading which examines only the "legality of the purely verbal act," a moderate reading which requires examination of the "lawfulness of the secession as such," and an expansive reading which together with the lawfulness of secession takes into consideration the very "consequences of its findings of (il)legality." (21) The ICJ opted for the narrow reading stating that the "question is narrow and specific [and] it does not ask about the legal consequences of that declaration." (22) This decision prompted a fair measure of outrage among legal experts, the ICJ was "blamed for having taken the easy route by focusing on the narrow question of whether international law prohibits unilateral declaration of independence." (23) Although the court made a distinction between 'effective' and 'declarative' independence since some declarations "resulted in the creation of a new State, as other it did not." (24) It did not have the courage to mention the criteria for statehood, suggesting that international law has little to say on relations between states and non-state actors. (25)

While perceived as a grandiose political victory for the Kosovo Albanians, a legal blow for Serbia, and a missed opportunity to frame rules for external self-determination outside colonial context; in fact, the decision was designed to ease tensions between Kosovo and Serbia. (26) The court...