The dispute between Serbia and Kosovo over the northern region spurs many questions which need examination in order to determine the possibilities – or non-possibilities – for both Serbia’s and Kosovo’s future as member states of the European Union (EU). The dispute regards northern Kosovo, in which Kosovo argues for full territorial integrity and Serbia in turn maintains that ethnical Serbs in the region need to have – at the very least – autonomy from the rest of Kosovo. At the present, EU acts as a mediator between the two parties, with the last dialogue held on last Thursday. What needs to be examined is to what extent disputes, such as the one addressed by this reflection, affects the possible accession of Serbia and eventually Kosovo to the EU and how such disputes affect the EU’s enlargement policy.
When acceding to the EU one needs to take into account the different criteria the organization requires new members to fulfill, generally known as the Copenhagen criteria adopted in 1993 by the Copenhagen European Council. These criteria consist of political, economic and legal aspects. The political criterion requires that a state has stable institutions guaranteeing democracy, rule of law, human rights and protection of minorities. The economic criterion involves a functioning market economy and the capacity to cope with the competitive pressure and market forces within the Union. The last criterion requires acceptance of the acquis communautaire and it lists inter alia what treaties and regulations a candidate needs to implement. The acquis to be implemented can be up to 80,000 pages or more, the process of becoming a member is therefore neither quick nor painless. More importantly these criteria also find support in the provisions of the Treaty on the European Union (TEU), including article 49 and 2.
The Commission has a specific role in these respects. Article 49(1) TEU provides that the Council and Parliament approve new members “after consulting the Commission,” and the Commission in turn examines and reports on states’ future prospects for membership. In regard to Serbia and the EU’s enlargement policy, the Commission notes that Serbia is on the path of membership since it has already attained candidate status as of March 2012. However it has significant obstacles to overcome in the ambit of rule of law. The Commission makes clear that the primary obstacle for Serbia is the dispute with Kosovo, and that it will file a report “as soon as it will have assessed that Serbia has achieved the necessary degree of compliance with the membership criteria, in particular the key priority of taking steps towards a visible and sustainable improvement of relations with Kosovo” (see Enlargement Strategy, p. 26).
It is also important to note that the EU has concluded a Stabilization and Association Agreement (SAA) with Serbia, primarily in accordance with its competence under article 217 and 218 of the Treaty on the Functioning of the European Union (TFEU). These provisions entitle the Union, as a subject of international law, to conclude treaties with other subjects (see, e.g., the Commission’s feasibility report regarding Kosovo). The SAA agreements are specifically made to customize the Balkan states upcoming accession to the EU. However the Serbian SAA, which covers more or less the criteria for accession, is not enough since the enlargement strategy also provides other conditions for a future accession of Serbia. The enlargement strategy specifically requires that Serbia needs to improve its relations with Kosovo in order for accession talks to be considered. Therefore, on the basis of what has just been presented, it can clearly be deduced that the EU requires Serbia not only to fulfill the criteria set up in the SAA agreement but also to resolve its dispute with Kosovo before becoming a member of the EU.
The situation of Kosovo is more complex. Although the EU does not officially adopt a position to whether or not Kosovo is a state, the acceptance of its statehood can easily be implied. First and foremost the Commission states that it is not impossible for the EU to conclude an SAA with Kosovo, despite the fact that five EU members do not recognize it as an independent state (prominently Cyprus, Spain, Greece, Romania and Slovakia). The Commission confirms that “an SAA can be concluded between the EU and Kosovo in a situation where EU Member States maintain different views on status.” The Commission was quite clear to denote that the conclusion of an SAA would not be considered as a recognition of Kosovo’s statehood unless an explicit recognition is made in the terms of the agreement. Notwithstanding this statement, the EU’s acceptance of Kosovo statehood can still be implies considering the Commission’s statement:
“[A] visible and sustainable improvement in relations between Serbia and Kosovo is needed so that both can continue on their respective paths towards the EU, while avoiding that either can block the other in these efforts. This process should gradually result in the full normalisation of relations between Serbia and Kosovo with the prospect of both able to fully exercise their rights and fulfil their responsibilities within the EU. Addressing the problems in northern Kosovo, while respecting the territorial integrity of Kosovo and the particular needs of the local population, will be an essential element of this process.”
The preferable outcome of a possible solution between Serbia and Kosovo is quite clear from the Commission’s standpoint. According to the enlargement strategy, the EU wants a larger territory, implicitly meaning that the EU wants more member states. This in turn means that Serbia will eventually have to recognize Kosovo as a state and Kosovo needs to fulfill the Copenhagen criteria, meaning that it will have to ensure protection of the Serbian minorities in northern Kosovo. The dispute therefore is clearly an obstacle for Serbia’s and Kosovo’s future accession to the EU as it is not in conformity with the enlargement strategy.
To resolve such disputes before starting accession talks with prospect states can be considered a wise approach by the Union. The EU’s prior acceptance of Cyprus despite the unresolved – and to date frozen – conflict it has with Turkey has led to inconvenience for the Union and it seems that the EU has learned from its past mistakes since it now requires a solution between Serbia and Kosovo before accession. Naturally, it is not illogical for the EU to seek peace between states before they join the same Union.
One can perceive the situation as paradoxical. It is quite feasible that the dispute needs to be resolved, because if both Serbia and Kosovo are going to accede it also means that Serbia eventually will have to recognize Kosovo. And Kosovo in turn cannot accede before Serbia, because if Serbia insists on its position of non-recognition then probably the five EU members not recognizing Kosovo will continue to do so and not ratify Kosovo’s accession treaty. Catherina Ashton, mediator between the parties and High representative of the Union, has held that the divide between the parties is “very narrow, but deep.” Ashton however, very diplomatically, expressed on 8 April 2013 that:
“I believe in a bright future for Serbia and Kosovo and I know that, however difficult the process has been, it unlocked the potential for people – especially in northern Kosovo – to have a better life. I hope that Kosovo and Serbia will not miss the opportunity to put the past behind them and move forward into the future. I hope I will be leading the discussion in the EU over the next few days in support of a real step forward by both Serbia and Kosovo towards their European future.”
A report from the Commission on Serbia’s future accession was recently delayed for reason of further talks between the parties which seems to have led to some conclusions. There have been a total of four progress reports since 2009, which all have recommended accession negotiations with Serbia. The Commission will now provide yet another report on the issue and it recently stated that it hopes the Council will act upon its recommendations. The latest negotiations held on 19 April, led to a “landmark” agreement which is an important step in normalizing relations between the two parties. President Barroso upheld the agreement as ‘historic’ in a press release from last Friday, and concluded that the agreement will be able to “pave the way” for the council to decide on the future accession of the two parties. Serbia however maintains that it will never recognize Kosovo as sovereign because the territory is the cradle of the Serb nation.
by Amanda Lorentz, Aljosa Noga and Sofia Persson Falkner
 Art. 2 in the TEU confirms general principles similar to those in the Copenhagen criteria.