Serbia and Kosovo: Legitimacy deficits are barrier to Brussels Agreement progress

29 March 2018

The arrest of Marko Djuric and potential for a serious escalation will likely force an even stronger role for the EU as a mediator.

By Vladimir Gligorov
Photo: Marko Đurić, Medija centar Beograd, CC BY-SA 3.0

Marko Djuric, head of the Serbian government’s office for Kosovo, was arrested in northern Kosovo on March 26th. Mr Djuric had crossed into the country despite being warned by the Kosovan government not to. He was later released, but claimed he had been physically abused while in custody. The incident has inflamed already high tensions, and is likely to lead to the collapse of the government in Pristina (Serb deputies have pulled out of the coalition arrangement).

The incident presents a serious threat to rapprochement between the two countries. Kosovo and Serbia signed the Brussels Agreement on normalisation of relations in 2013. The agreement rests on a “trade” between the two countries. In short, the trade appears to be that Serbia accepts the so-called “two Germanys solution” (i.e. as between East and West Germany), while Kosovo accepts autonomy for majority Serbian counties (the "Association/Community of Serb majority municipalities in Kosovo", detailed in the 2013 Brussels Agreement). Serbia is not expected to extend full diplomatic recognition to Kosovo, but would not stand in the way of its becoming member of the UN (that assumes Russia will not veto it in the Security Council). There is the additional issue of autonomy for the Serbian Church and its religious buildings and sites (which remains an open issue). There are also property issues to be settled, although these could be delegated to international courts and arbitration.

Brussels Process agreement lacks local legitimacy on both sides

The key problem is not so much the content of the Brussels Agreement, but its legitimacy. The public in both Serbia and Kosovo is not supportive of the “trade” (specifically a greater degree of autonomy for the Serbs, and membership in the UN for Kosovo). In effect, there are two legitimacy problems facing both governments. First, intrinsic legitimacy: is it a good deal, that both sides can live with? Second, there is the problem of the legitimacy of the parties to the deal – the presidents of Serbia and Kosovo.

The Serbian President, Aleksandar Vučić, has taken over responsibilities which he does not have. Serbia is a parliamentary, not a presidential democracy. De facto, however, it is the President that the Government and the Parliament are now reporting to. Mr. Vučić is also negotiating with Kosovo’s President Hashim Thaçi, which he can do only because he is the leader of the largest party, which constitution does not allow for (the president should renounce all party positions), and thus controls the government. Therefore, while he commands popular support, his legitimacy is questionable, which could prove to be a problem once a Kosovo deal needs to be sold to the public.

Meanwhile on the Kosovan side, both Mr Thaçi and the government now lack popular and electoral support, and thus face implicit and explicit legitimacy problems in daily politics, let alone in their ability to negotiate and sign an agreement with Serbia. The hope is that the potential for membership in the EU will be enough of an incentive for the public to overcome the potential legitimacy crises in both countries, but that is not at all clear.

Constitutional changes required on both sides

Part of the reason for doubt in the case of Kosovo’s part of the bargain is that among much of the public, and certainly when it comes to the opposition, there is a belief that Kosovo has the right to a seat at the UN. Therefore, so the argument goes, nothing is gained by conceding anything to Serbia or anybody else in order to claim that right. Recent events in Kosovo indicate a hardening of the position towards Serbia. Among other things, the Supreme Court has ruled the Association of Serbian Counties as unconstitutional (in response, Serb leaders have now given authorities in Pristina three weeks to do so, or have pledged to do it themselves). 

This is important because for any agreement to be implemented, changes to the constitutions of both Kosovo and Serbia will be necessary. It is hard to see this happening in Kosovo, for the reasons described above. The situation in Serbia is different because the president and his party command significant electoral support. But this could change if the constitution needs to be altered, and then parliamentary elections have to be won on that basis. In that case, both the legitimacy problem of the President, and of the policy towards Kosovo, will be challenged at the same time.

Potential for an escalation exists

Currently, Serbian opposition to the agreement with Kosovo is not only focused on a frozen conflict as the only alternative. There is in fact no public support for actions to increase Serbia’s presence in Kosovo, let alone for those that would involve the use of force. By contrast, in Kosovo, there is growing pressure by the opposition and among the public for the government to take forceful measures to assert Kosovo’s sovereignty over its whole territory, which is to say over the Serbian counties too. That would trigger a Serbian reaction, and then things could get out of hand. The events of last few days have already demonstrated how quickly tensions can escalate.

Role for outside actors

An outbreak of fighting between Kosovo and Serbia remains highly unlikely. The leaders of both countries lack the legitimacy needed for a “just conflict”, especially a military one. They can also hardly hope to increase their legitimacy by engineering a military confrontation. All they can hope for is that the increased risk of physical conflict will increase the value of the Brussels Agreement, which in the outline is already drafted and needs to be sold to the public of both countries. The increased risk of conflict may prove supportive of further negotiations and possibly of an agreement, in which the EU and US play significant roles.

The EU plays the key role in all this, but it is not clear whether it can deliver when push comes to shove. Even if Kosovo is accepted into the UN, that does not mean that all member states of the EU will be ready to extend their diplomatic recognition to Kosovo. At the moment, it is highly unlikely that Spanish government will do so (Cyprus is also questionable). If there is no unanimity within the EU, which currently appears to be quite a likely scenario, Kosovo will face both problems in its relations with the EU, and the prospect of continuous (and painful) negotiations with Serbia if the latter advances toward membership in the EU (the Slovenia-Croatia case is an illustrative example here). As a result, while the current negotiations and conflict seem characteristic of the final lap in a long-distance political race, they may in reality prove to be the beginning of another potentially longer one.