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Kosovo and Serbia agreed in Brussels in 2013 to establish the Association/Community of Serb-majority municipalities (ASM). After a decade, this agreement has become a bogeyman for Kosovo.

For the Serb community living in the north and several enclaves south of the Ibar river, it represents a basis for participating in the political life of Kosovo.

The government of Kosovo has been adamantly against establishing the ASM on the basis that it will lay the foundations for a new “Republika Srpska” in Kosovo and block the functioning of institutions in Kosovo.

This article will try to answer whether the fear of a new “Republika Srpska” is well-founded or represents a legitimate demand of Serbs living in Kosovo, coming from the Agreement Kosovo signed in Brussels and ratified in the Assembly in 2013.  

A path towards multi-ethnic Kosovo

Prior to 2013, all institutions in the north of Kosovo, including local-self governance units, courts and prosecutor’s office, and even the police, were functioning within the system of Serbia. Effectively meaning no control of the government in Pristina whatsoever.

After signing the First Agreement of Principles Governing Normalisation of Relations (otherwise known as the Brussels Agreement), all of the institutions mentioned above were dissolved. Police units of the Serbian Ministry of Internal Affairs joined the Kosovo Police, new local elections were held under the Kosovo law and municipalities under the Kosovo political system, while judges and prosecutors started working in Kosovo’s judicial system.

The ASM was part of the deal to integrate the Kosovo Serb community into Kosovo’s political system. By integrating into Kosovo’s system, Serbs in the north, and Serbia, fulfilled their end of the bargain, and now is the time for the government in Pristina to complete its part. From the Serbian perspective, this is absolutely necessary to regain trust.

The Kosovo government needs to respect its international commitments by establishing ASM. This is a prerequisite for the normalization of relations between Kosovo Albanians and Serbs.

With the Serb minority able to exercise local self-governance in accordance with the European Charter of Local Self-Government, Kosovo will be able to confirm its multi-ethnic status.

The fear for a new “Republika Srpska”

A closer look at the competencies of the ASM (in agreements from 2013 and 2015) shows that the ASM is nowhere near territorial autonomy in the classical sense.

The ASM reminds with its designed institutions (president, vice-president, assembly, etc.) of Republika Srpska. However, the Community will have powers mainly in the domain of local self-governance (oversight of municipalities), meaning an overview of urban and rural planning, primary and secondary education, healthcare and social protection, among other public services.

At this place, it is important to note that the education and health care institutions in the north are already functioning separately from the Kosovo institutions. In this sense, creating the ASM would only legalize the current state of affairs.

However, the main argument against establishing the ASM lies in its executive powers.  The dilemma is a result of the EU’s constructive ambiguity appraoch in defining the competencies of the ASM.

For instance, the term used for defining powers in areas of the local economy, education, primary and secondary health and social care, and urban and rural planning is ‘exercise full overview.’ In comparative practice, this term is non-existent and means nothing.

Unsurprisingly, one side expects full executive powers while the other expects nothing more than horizontal cooperation of municipalities.

However, with full executive powers, it will not have the capacity to block the decision-making process in Kosovo as Republika Srpska can do in BiH. The Community will not have veto powers but will represent the interests of the Serb community in Kosovo and allow them to decide on local matters.

Between international law and Constitutional Court obligations

The Brussels Agreement was signed by the Kosovo government and later on ratified by the Kosovo Assembly as an international treaty, thus constituting an international obligation of Kosovo.

Kosovo’s constitution (2008/04) states that each ratified international treaty becomes part of the internal legal order, is directly applicable and holds supremacy over domestic laws.

Taking into consideration all these points, an important question arises: How is it possible that the Brussels Agreement has not been fully implemented after a decade?

The answer lies in the lack of political will to implement the Brussels Agreement and the Kosovo Constitutional Court decision.

The decision regarding the legality of the ASM is numerous times cited by politicians who are against the creation of the ASM. However, the court’s decision does not say that the ASM cannot or should not be created.

In 2015, the Kosovo Constitutional Court ruled that the Agreement was not fully in the spirit of the constitution and that the ASM has to be in line with Kosovo’s constitutional standards. Thus, the court never said that the ASM is unconstitutional but that it should be legally set up according to standards set out in the constitution.

This leads to the conclusion that politicans misused the decision of the court to rise to power and cover up their unwillingness to implement Kosovo’s international obligation.

There are three key takeaways when it comes to the ASM. First, it represents an initial step in building trust between Serbs and Albanians in Kosovo. Second, fears of a new “Republika Srpska” are not founded and are overemphasized by politicians. Third, the ASM is not unconstitutional, and there is no obstacle to starting the implementation of the Brussels Agreement.

The only thing lacking is political will from the current Kosovo government. Ultimately, implementing the ASM would ensure respect for the rule of law and international obligations and, most importantly, enable the normalization process to continue from an extended impasse.