Serbia is undermining a raft of EU-brokered agreements relating to either Belgrade or Pristina pursuing their European path by attempting to stand in the way of the latter’s Council of Europe bid, writes Kushtrim Istrefi.
Kushtrim Istrefi is an assistant professor of human rights law and public international law at the University of Utrecht and is part of the Netherlands Institute of Human Rights and the Utrecht Centre for Accountability and Liability Law.
In May 2022, Kosovo applied for membership in the Council of Europe, the chief organisation for protecting European human rights. To join, they will require a 2/3 majority among members, which seems realistic, given that the country has been recognised by more than 2/3 of the organisation’s member states.
Serbia has reacted harshly against this application, and one European diplomat in Strasbourg even suggested that Serbia has threatened to leave the Council of Europe should Kosovo join.
While this outcome appears unrealistic (e.g. Kosovo and Serbia are members of several organisations and initiatives), Serbia’s antagonistic response is worrying for at least two reasons.
First, a more careful analysis shows that Serbia’s position contradicts the EU-facilitated agreements and threatens the future of the Brussels dialogue on the normalisation of relations between Kosovo and Serbia. Second, it also shows Serbia’s lack of genuine efforts to represent the interests of Kosovo Serbs in the Brussels dialogue, given that Kosovo Serbs would benefit from Kosovo’s membership in the Council of Europe.
Against this background, Kosovo’s bid for Council of Europe membership should be seen as a test of Serbia’s commitment to the EU dialogue and resolving disagreements with Kosovo in a way that serves, among others, the interest of Kosovo Serbs. Let me explain in more detail these two points.
First, Serbia’s opposition to and encouragement of others to oppose Kosovo’s membership in the Council of Europe is an act contrary to the text and spirit of the EU-facilitated Brussels Agreement of 2013 on the Normalisation of Relations between Kosovo and Serbia. This ‘historic’ agreement in paragraph 14 states, “Neither side will block, or encourage others to block, the other side’s progress in their respective EU paths”.
Indeed, the Council of Europe is not the EU. However, the path to the EU goes through the Council of Europe. The EU Commission has noted on numerous occasions that the EU acquis includes ratifying the Council of Europe’s convention on human rights. This directly connects the 2013 Brussels Agreement and Kosovo’s membership in the Council of Europe.
The EU Commission in January 2007 has stated that “In the negotiations for the accession of new Union members, respect for the Convention and the caselaw of the European Court of Human Rights is treated as part of the Union acquis”. This interpretation is in line with earlier reports of the EU Commission. For illustration, the Commission’s 1997 Opinion on Bulgaria’s application for EU membership notes that any State wishing to join the European Union must first have ratified the Council of Europe’s convention on human rights.
The Commission’s position that Council of Europe conventions and its case-law present EU membership requirements is unsurprising. Article 49 of the Treaty on the European Union (TEU) provides that “Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union”.
The values referred to under Articles 2 and 6 TEU include respect for the Council of Europe’s convention on human rights and its case law which also presents general principles of EU law.
Against this background, any claims by Serbia discouraging Kosovo’s membership in the Council of Europe contradict the 2013 Agreement between Kosovo and Serbia on the normalisation of relations. Beyond the above legal arguments, it is incomprehensible that Serbia opposes Kosovo’s bid for Council of Europe membership after having signed an agreement where it commits not to compete or encourage others to oppose Kosovo’s path to the EU – another organisation based on the same values of human rights, the rule of law and democracy.
Second, it has been reiterated by many actors facilitating the dialogue that the final agreement between Serbia and Kosovo is centred on the mutual recognition of both States but also reassurances of protection of Serb minorities in Kosovo. Since the Council of Europe is the chief organisation for the protection of human rights, it is paradoxical that Serbia opposes Kosovo’s membership in the organisation.
This would prevent, among others, Serb citizens from bringing human rights complaints against Kosovo before the Strasbourg Court. This is even more so considering that Serbia has agreed that Kosovo Serbs integrate into Kosovo institutions which operate under Kosovo law. For example, Article 10 of the 2013 Kosovo-Serbia agreements provides for the abolishment of specific Serb parallel structures in the north of Kosovo and their integration under Kosovo’s unitary system.
If Serbia and Kosovo are sincere in resolving disputes as part of the EU dialogue, they should start by nothing less than upholding the terms and spirit of the EU agreements. The failure to do so could question the raison d’être of the EU dialogue. Hence, Serbia’s reaction to Kosovo’s bid for Council of Europe membership should be seen as a test of its commitment to and the potential of the EU dialogue.
This could prove a perfect moment to show that Serbia is making a genuine attempt to improve the position of Serbs in Kosovo and to reach a final agreement with Kosovo or that the EU dialogue in its current shape is misused to maintain the status quo for internal political gains endlessly.
The EU should act not as a mere facilitator of the dialogue but as a guarantor of the Kosovo-Serbia agreements. In this vein, the EU should openly note that Kosovo’s membership in the Council is in the interest of all citizens in Kosovo, including Serbs, and is in line with the text and purpose of the 2013 Agreement.
The EU should monitor whether parties comply with the EU agreements and, at times, remind them to abide by the terms and spirit of the EU agreements. The EU has recently taken such an approach regarding implementing the 2011 agreement on freedom of movement.
On 25 August 2022, the EU’s special envoy for the Belgrade-Pristina dialogue, Miroslav Lajčak, also “stressed that all Dialogue agreements must be implemented”. The EU’s proactive and robust role is essential to ensure that parties implement the Brussels agreements in good faith and remain sincerely committed to resolving remaining disputes.
Only then can one realistically hope that a final, binding agreement is within reach.
