The two Germanies agreement and the Kosovo-Serbia agreement

15 mars 2023 13:20

Artikulli origjinal.

The agreement about the relations between East Germany and West Germany, known as the German Basic Treaty (December 1972), recognizes the sovereignty of both states, regulates diplomatic communication between them, and paves the way for "good neighborly relations." This agreement was used as a model to draft the European Union’s proposal, titled, “Agreement on the path to normalization between Kosovo and Serbia,” verbally accepted in February by the Prime Minister of Kosovo Albin Kurti and the President of Serbia Aleksandar Vučić. Kurti has admitted that the Kosovo-Serbia agreement has taken a lot from the two former Germanies agreement.

The preamble and more than half of the articles of the Kosovo-Serbia agreement are entirely identical to the Agreement between East and West Germany. In the first article, where it is stated that Kosovo and Serbia are neighbors that develop relations based on equal rights (this being a great achievement for Kosovo in regard to the agreement), Kosovo managed to insert this sentence: “Both Parties shall mutually recognize their respective documents and national symbols, including passports, diplomas, license plates, and customs stamps.” Although documents, diplomas, car plates and customs stamps are also included in the previous agreements signed in Brussels between Kosovo and Serbia, in the current agreement, these appear pretty explicitly. Furthermore, recognition of passports and national symbols are added to the new agreement. Another achievement for Kosovo can be considered the advancement of the "liaison offices" of the parties in Prishtina and Belgrade to "permanent missions."

The problem with the EU agreement starts at the very beginning, in the designation of the parties involved. While the agreement between the two former German Republics, they refer to them throughout the text as "The Federal Republic of Germany" and "Democratic Republic of Germany," whereas in the agreement between Kosovo and Serbia, the Republic of Serbia and the Republic of Kosovo are not mentioned, but they’re only referred to as "parties."

Article 2 of the agreement is identical to Article 2 of the agreement between the two former Germanies. Neither party, (Kosovo nor Serbia) has managed to either add or remove anything. However, Article 2 is quite general. It does not say, as the Kosovar authorities try to argue, that Serbia accepts Kosovo's independence, territorial integrity and the right to self-determination but that the parties, among others, will respect and be guided by these principles as defined in the Charter of the United Nations. Moreover, this article does not specify whose independence, territorial integrity or the right to self-determination is referred to. So, this article contains what in political science is called the virtue of ambiguity.

Article 4 states that the parties proceed from the assumption that neither party can represent the other party in the international sphere, nor act on its behalf. Although Article 4 says "the parties proceed from the assumption," it constitutes another achievement of Kosovo. Kosovo manages to add this clause to Article 4: Serbia will not object to Kosovo’s membership in any international organization.

However, the reality is that this [notion] also appeared in the Economic Normalization Agreement of November 2020 signed by Prime Minister Hoti and President Vučić in Washington DC. Article 5 is identical to the 2020 agreement: "Neither Party will block, nor encourage others to block, the other Party’s progress in their respective EU path based on their own merits.”

In article 3 of the latest agreement there’s a missing key sentence, which is found in the agreement between the two former Germanies: "The Federal Republic of Germany and the German Democratic Republic reaffirm the inviolability now and in the future of the frontier existing between them and undertake fully to respect each other’s territorial integrity." Meanwhile, another article in the agreement between the two former Germanies, which Serbia has not allowed to be included in the Kosovo-Serbia agreement, is Article 6, which says the following: "The Federal Republic of Germany and the German Democratic Republic proceed on the principle that the sovereign jurisdiction of each of the two States is confined to its territory. They respect each other’s independence and autonomy in their internal and external affairs.”

The exclusion of these two crucial articles in the Kosovo-Serbia agreement is problematic because it does not provide any hint towards mutual recognition and normalization of relations between the two states. The most alarming thing is that, as EU mediators and PM Kurti have stated, "the parties have agreed that there will be no further discussions on this proposal."

The areas in which the parties will deepen cooperation between them, according to Article 6 of the Kosovo-Serbia Agreement, are completely identical to Article 7 of the Agreement between the two former Germanies, with a small difference. There are three additional points In the Kosovo-Serbia agreement: religion, missing persons and displaced persons.

The first one, religion, is added concerning the Serbian Orthodox Church in Kosovo. The second one, missing persons, is a matter from that interests and benefits both parties. Finally, the third one, the displaced persons, was added at the insistence of the Serbian side, because it concerns the displaced persons from Kosovo to Serbia.

It is disappointing that Kosovo has not demanded that all mutual issues with Serbia, including all war attoricities and damages be included in this provision. This is especially important considering that during the past two decades, while the Prime Minister Kurti was in the opposition, he considered these issues as a high priority on the Kosoov-Serbia talks. As for war damages, the agreement addresses only the issue of missing persons and displaced persons, and not the killing of civilians, rapes, imprisonments and hostages, deportations, destroyed communities (destroyed villages, communities left without men, cattle killings, robbery of movable property and museum artifacts, confiscation of personal documents), destroyed objects (houses, schools, ambulances, factories, mosques, madrassas, mosques, churches), and so on.

To normalize relations between Kosovo and Serbia, the agreement should also include compensation including restitution, compensation, rehabilitation, and the guarantee for the non-repetition of damages in the future. The last category includes measures such as: verifying the facts and fully revealing the truth, asking for forgiveness, commemorating and honoring the victims, and the correct presentation of facts in history textbooks.

What distinguishes the Kosovo-Serbia agreement from the agreement between the two former Germanies are Articles 7 and 10. There are three essential issues pertaining to these two articles: First, at what capacity will be the self-government of the Serb community in Kosovo; second, to what extent will be the protection of Serbian religious and cultural heritage; and third, (which is related to the first), what will be the competences of the Association of Serb-majority municipalities.

The hard work is not done yet. As the US State Department states, the agreement on the implementation annex is vital for the normalization of relations, and for this normalization to be possible, the implementation of the Association is emphasized. I am convinced that the lack of mutual recognition and the issue of the Association of Serb-majority municipality's jurisdiction will be the main reasons for Agreement’s failure to normalize relations between Kosovo and Serbia.

Illustration: Bigeye

15 mars 2023

Shkëlzen Gashi