The good, the bad and the unwritten

The EU-proposed draft of the statute for the Association of Serb-majority Municipalities in Kosovo is now widely available. Is it good, or is it bad? The answer of course is complicated and depends not only on what is in the proposed text but also what is not in it. So here is my preliminary assessment:

The good

1. The text calls Kosovo the “Republic of Kosovo,” which in my view is the right appellation (in English). I suspect this is a deal-breaker for Serbia, but we’ll have to wait and see.
2. It provides for prior Kosovo Constitutional Court review, including of any amendments to the statute, which is vital.
3. The procedures for establishment strike me as reasonable and include a role for the Kosovo government’s Ministry of Local Government Administration.
4. Joining the Association is voluntary for the Serb-majority municipalities. Non-Serb communities are to be represented, albeit in some undefined way.
5. The EU will provide oversight for 5 years, renewable for another 5.

The not so good

1. The statute says the purpose is to enable Serbs in Kosovo to take advantage of already existing rights without adding executive competencies beyond those already existing in the municipalities. That isn’t good, as it admits the possibility of executive competences in areas of already existing municipal responsibility.
2. It allows the Serbian government to provide financial support without requiring that it flow through the Kosovo government, which has only auditing powers. It also provides for duty and tax-free imports for the Association, which is a giant loophole.
3. The Association can adopt regulations, decisions, declarations, rules of procedure and instructions. This provision clearly anticipates executive powers.
4. The Serbian government can provide through the Association health and educational services. This essentially makes permanent the current arrangement, which infringes on Kosovo sovereignty. I don’t see a clear provision for Republic oversight of the curriculum offered in the Serbia-provided educational institutions.
5. The Serb-majority municipalities get carte blanche in areas of municipal responsibility, including culture, economic development, urban and rural planning, and research and development. I wonder if the Association decided cars should drive on the left whether that might be covered.

What is not said

1. There is no quid pro quo. The statute itself does not require Serbia’s recognition of Kosovo or even refer back to the 2013 agreement on which it is based, which had clear provisions implying Kosovo’s sovereignty and recognizing the validity of Kosovo’s constitution on its entire territory. These issues should be fixed before any formal adoption of the statute.
2. There are a lot of provisions in the statute that Serbia would not countenance for the Albanian-majority municipalities in Serbia. Reciprocity is among the first rules of diplomacy. Anything Serbia wouldn’t agree to, Kosovo should not agree to unless it serves the Republic’s interest.
3. There is no constraint on agenda items the Assembly could discuss. Would it be permissible for it to discuss rejecting the Kosovo judicial system, as the Assembly in Bosnia’s Republika Srpska has done, or declaring independence? Could it issue a regulation prohibiting display of Albanian cultural artefacts within the municipalities of the Association?
4. There is no provision requiring that public meetings of the Association and its executive Board, or even public announcement of their decisions.
5. The EU and US no doubt intend to cram this proposal down Albin Kurti’s throat. That would be a mistake.

I’m sure many of these points are debatable and that I haven’t got everything right. There may well be other points needing clarification. I’ll be glad to see wide discussion of this draft.