Ardit Orana
New Social Initiative Blog April 5, 2022

The (im)possibility of ASM

This article was originally published on New Social Initiative.

Nine years have passed since the first agreement on principles governing normalization of relations (commonly referred to as the ‘Brussels agreement’) was signed between Kosovo and Serbia. Despite notable achievements related to integration of some parallel structures (police and judiciary), as well as the organization of elections in Serb-majority northern municipalities, the high-level dialogue has to this day, failed to facilitate the implementation on the formation of the Association of Serb Municipalities (ASM). While the Kosovo Assembly has ratified the Brussels agreement through the 2013 Law on the Ratification of the First International Agreement of Principles Governing the Normalization of Relations between the Republic of Kosovo and the Republic of Serbia, no ensuing steps have been taken in the institutionalization of ASM.

A 2015 agreement on the ‘general principles/main elements’ of ASM had been brokered by the European External Action Service (EEAS) to support its implementation. Although the 2013 agreement did not foresee the development of implementing protocols, its successor, the 2015 agreement, was precisely that. To many, the 2015 agreement was seen more as a political necessity to mark progress on the dialogue to support the opening accension chapters with Serbia, rather than a concrete framework for the establishment of ASM. Instead of clarifying the ambiguous terminology developed in the first Brussel’s agreement, the 2015 agreement only exacerbated polarization on the scope of competencies of the ASM.

Constitutional discrepancies

Given the unclear delineation of competencies and formation, it is of no surprise that the former President of Kosovo, Jahjaga, forwarded the agreement to the constitutional court for a much-needed judgment. The court analysis, similar to the scope of the agreement(s), was marred in ambiguous language which only complicated issues further. While it did not rule the formation of the ASM unconstitutional, it asserted that the statute of ASM follow a set of eighteen (18) articles in the Constitution as a benchmark for its eventual formation. In essence, the judgment, renders the 2015 agreement legally void, yet conditions the formation of the ASM on the basis of the ratified 2013 agreement.

The dissenting opinion of constitutional judge Bekim Sejdiu on the other hand, provides for necessary nuance on the legal ambiguity of the judgment. In it, judge Sejdiu establishes that that the implementation of the ASM along the principles/elements developed in the 2015 agreement would entail a “constitutional anomaly”. To avoid this, he argues, that either the constitution must be amended, or the legal basis for the formation and implementation of ASM must be reframed. As such, the legal ambiguity created by the constitutional court’s priority of “[setting] a middle ground”, not only renders the 2015 agreement devoid of legality, but it also promotes the prolongation of irreconcilable expectations on the scope, mandate, and composition of ASM.

Perpetual dissensus

In its current format, ASM’s implementation has become unattainable. The expectation for the constitutional judgment was that it would indeed clarify the trajectory that ASM would be expected to take. Instead, the judgment further exacerbated contesting views by effectively returning the parties to the ambiguity of the 2013 agreement that had tainted the process initially. The level of politicization of ASM has similarly not diminished due to a continuous insistence by Brussels that Kosovo must uphold its end of the bargain.

However, the latest visit by EU Special Representative Miroslav Lajcak and the US State Department’s Gabriel Escobar highlighted a notable shift in the international position on ASM. Previous inflexible pressure on ASM, illustrated by Prime Minister Kurti’s and High Representative Borrell’s quarrels during a Brussels press conference, has significantly waned. Both Lajcak and Escobar largely focused on quenching fears of ASM’s effect on Kosovo’s functionality, rather than press the government on its undisputable implementation. While Lajcak recognized that options cannot be imposed upon Kosovo as an equal side, Escobar suggested that alternatives could be developed to accommodate an Association.

Despite these shifts, the Kosovo government has remained adamant on the futility of ASM. In a recent interview for the public broadcaster RTK, Prime Minister Kurti insisted that the constitution of Kosovo does not allow for the creation of association(s) on ethnic grounds. On the other hand, a recent public communique by the Serb List issued that the Serb population is vehemently against the Kosovo Government’s attempts to reduce competencies of the ASM. The diverging views on ASM have made the process ripe for continued contestation.

To make matters worse, EU facilitation of this process has complicated matters more than provided a clear roadmap for the formation of ASM. The Brussel’s modus-operandi of “constructive ambiguity” has embedded three key structural challenges related to the formation, competencies, and ownership of ASM that make prospects of its implementation improbable.

Uncertainty over formation

Despite numerous open-ended ambiguities in the 2013 agreement, it nevertheless maintained one point of clarity on conditions for ASMs formation and dissolution. Among its first points, it clearly established that a statute would be a prerequisite to its creation, in addition to setting participating municipalities as primary stakeholders in its formation and dissolution.  To this end, it seemed clear that the formation of the ASM would be a process led by participating municipalities. The 2015 agreement on ‘general principles/main elements’ of ASM however, significantly deviated from this point, which initially, wasn’t contentious. The second point of the 2015 agreement, delineated that the Kosovo government would “adopt a decree directly applicable” for the establishment of ASM.

While the 2013 agreement gave precedence to participating municipalities in establishing the ASM, the 2015 agreement included the government of Kosovo as a stakeholder in its creation. This discrepancy between the initial 2013 agreement and the one in 2015, significantly impacted the public discourse on the conditions for the formation of ASM. It similarly further exacerbated conceptual differences illustrated by the different terminologies of Association and Community.

Community rights protection or service delivery

For Kosovo Serbs, ASM is viewed as a necessary body which directly exercises executive powers in the areas of healthcare, education, rural planning, and service delivery. In their view, only through the insulation of an autonomous body can their living conditions in Kosovo improve, in addition to protecting them from what has been coined as threats of majorization. These views speak to the duality of what Kosovo Serbs envision the ASM to be. ASM would not only ensure that service provision in education, healthcare and social welfare is effectively insulated in Kosovo, but it would also assume an additional role in community protection alongside existing constitutional and legal mechanisms.

Kosovo’s current legal framework, however, only regulates these issues through the promotion of inter-municipal cooperation or the formation of associations. Where associations are centered on the protection and promotion of common rights, inter-municipal cooperation, among others, focuses on the pooling of competences to improve the efficiency of municipal services. According to the ambiguities created by the 2015 agreement, ASM would be vested with a mix of responsibilities and mandates spanning across community rights protection and service delivery.

ASM cannot legally replace or undermine existing constitutional and legal mechanisms that have been designed to safeguard community rights at the central level. In essence, the unclear expectations of Kosovo Serbs on the scope of responsibilities of ASM underpin the contested nature of it. If perspectives remain unclear on whether ASMs formation advances community protection and/or service delivery, Kosovo institutions will remain hesitant to discuss its implementation without considering the country’s overall community protection framework.

Local ownership

The entitlement for the participation and formation in Associations of municipalities in Kosovo has long been enshrined in Annex 3 in the Ahtisaari plan. In addition, Article 3 on rights of communities and their members delineates that “[communities] may establish associations for culture, art, science, and education as well as scholarly and other associations for the expression, fostering and development of their identity”. Given the scope of the Ahtisaari plan, Kosovo had already established the necessary legal and practical conditions for the formation of associations to safeguard community identities.

Considering that Serbia had boycotted the Vienna negotiations which led to the subsequent implementation of the Ahtisaari plan, Kosovo had assumed local ownership over the accommodation of legal and constitutional mechanisms for the protection of community rights. By signing the 2013 agreement, Kosovo ceded legal responsibility for the representation of Kosovo Serb interests to Serbia. The agreement, among others, established Serbia as a credible stakeholder in negotiating the extent of Kosovo Serb integration within Kosovo. As such, the creation and scope of ASM would be a political incentive actively promoted by Serbia and not Serb-majority municipalities in Kosovo. This shift, gave way to the overpoliticization of the future formation of ASM, effectively alienating Kosovo Serbs and leaving space for the manipulation of public narratives of it.

Way forward

It is clear that Kosovo has conditioned its progress on the dialogue on the formation of the ASM. By ratifying the Brussels agreement in the national Assembly, the implementation of ASM has become an imposed element within the constitutional and legal order in Kosovo. The current government cannot selectively pick out elements of the constitutional judgment of the 2015 agreement to operationalize the unconstitutionality of ASM. While we should look critically upon the judgment, the reality is that the formation of the ASM has been deemed a legal obligation for Kosovo.

Serbia’s disingenuous goals for the ASM far surpass any considerations for the well-being of Kosovo Serbs and their position as a rightful community within the Republic of Kosovo. This reality should not be ignored. However, the Kosovo government cannot risk further alienating its citizens as a result of the increasingly overt malign intentions of Serbia. At the same time, Prime Minister Kurti should not be so quick to disregard questions on the legal obligations on the implementation of ASM as unconstitutional and futile.

The current government has an unprecedented opportunity in reframing the question of ASM into a larger discussion on the effective integration of Kosovo Serb and the defacing of remaining illegal parallel structures. Currently perceived anomalies on the formation, competencies, and ownership of the ASM should be discussed openly and embraced by the government of Kosovo. There is no doubt that the integration of Kosovo Serbs is a priority for the Kosovo government, however, Prime Minister Kurti should not risk further alienating them through the abrupt dismissal of ASM whenever it is brought up. The reality is that a large number of Kosovo Serbs believe that ASM is necessary for ensuring the effective implementation of community rights mechanisms that in their view remain unimplemented to this day.

Kurti should use this opportunity to signal the caveats of ASM in regard to its formation, competencies, and ownership in order to have more meaningful conversations with Kosovo Serbs on how overall community rights protection and service delivery can be improved for them.