Kosovo’s contested EU membership perspective

By ARK | 31 March 2013

To quote this document: ARK, “Kosovo’s contested EU membership perspective”, Nouvelle Europe [en ligne], Sunday 31 March 2013, http://www.nouvelle-europe.eu/node/1666, displayed on 24 September 2022

As the EU-mediated dialogue between Belgrade and Pristina scores tangible results so is the enlargement process. Both processes are inextricably linked. While Serbia is expected to open EU accession negotiations during the Irish presidency (first half of 2013), Kosovo could only be given a pat on the shoulder and fail short of receiving a green light for the start of negotiations on a Stabilisation and Association Agreement (SAA).

This article examines the immediate consequences for the EU-mediated dialogue but also the recurring challenges for Kosovo’s EU membership perspective and the credibility of the enlargement policy at large.

Enlargement for peace

There is no doubt that the carrot of EU integration has created a strong impetus for resolving the Serbia/Kosovo conflict via the EU-mediated dialogue. The enlargement calendar has punctuated the peace talks since their launch in March 2011. Currently there are high expectations that the dialogue could mark a break with the EU’s enlargement approach, highlighted by the publication in mid-April 2013 of the Commission’s enlargement reports.

While the strong linkage between enlargement policy and peace mediation can hardly be denied, this does not come without risks. The over-politicisation of the enlargement process and the granting of quick rewards could potentially compromise the EU’s transformative power. Moreover, it is doubtful whether both processes could evolve at the same pace. On the one hand, the EU could be tempted, and is indeed expected, to reward both parties evenly with enlargement tools (start of SAA negotiations for Kosovo, start of EU accession negotiations for Serbia) so as to keep the dialogue going. Brussels is well aware of the domestic political pressure and costs for both Belgrade and Pristina. On the other hand, not offering carrots to one party because of its failure to make tangible democratic reforms, which is at the very heart of EU’s conditionality, could slow down the mediation process.

The General Affairs Council (GAC) in June this year will have to strike a delicate balance. If EU Member States are expected to reward Serbia by opening accession negotiations precisely one year after Montenegro and at the same time as Croatia joining the EU, the same could not be said about Kosovo.

Concerning Kosovo, there are still a number of outstanding issues. The December 2012 GAC conclusions condition the start of SAA negotiations with Kosovo on short term priorities concerning the rule of law, public administration, protection of minorities, trade and cooperation with EU’s rule of law mission (EULEX) and the work of the EULEX Special Investigative Task Force. The February 2013 EC report on Kosovo’s progress towards visa liberalisation warned of Kosovo’s incapacity to tackle corruption and organised crime. The persisting issue of drug and human trafficking but also the lack of progress on human rights was recently highlighted by a Human Rights Watch report. The October 2012 Court of Auditors’ report also questioned the effectiveness of EULEX, and recommended inter alia a better use of EU conditionality tools, such as visa liberalisation.

More generally, Kosovo lacks state traditions and this will effectively impede it in the future from entering the EU at the same time as Serbia. This being said, one should already reflect on creative legal ways of avoiding a Cyprus/Turkey blockage scenario. This will guarantee a real EU membership perspective for Kosovo and keep the incentive for peace alive.

Keeping the EU membership perspective for Kosovo alive

The issue of EU-Kosovo relations is still at a standstill despite the EC’s long-held argument that legal relations could be established without prejudice to status and to the positions of the five non-recognizers (Greece, Cyprus, Slovakia, Romania, Spain). Establishing contractual relations between the EU, its Member States and Kosovo is a tricky matter. The legal debate opposes the standard procedure of concluding agreements with third “countries”, as defined by article 218 of the TFEU, to the non-recognizers’ plea to use an extraordinary procedure under art. 352 TFEU. It is still arguable whether the EU’s contractual relations with Kosovo and the non-recognizers’ ratification of SAA (and potentially of the EU accession treaty with Kosovo) could be interpreted as state recognition, despite safeguards such as the asterisk agreed in the dialogue and the disclaimer “without prejudice to Member States’ positions on status”.

Despite the EU’s schizophrenia on status, the EU’s leverage is constantly increasing. There is a tacit agreement among Member States that the issue of status should not impede key reforms in Kosovo as they pertain to the EU’s own security. The Commission scored several successes with the start of negotiations that will allow Kosovo to participate in EU programmes and also with gathering EU support for Kosovo’s membership at the European Bank for Reconstruction and Development. The EC also issued a feasibility study on negotiating a SAA with Kosovo.

The EC is compelled to find innovative ways of sustaining much-needed state building reforms in Kosovo. The biannual structured dialogue on the rule of law was launched in May 2012 as a high-level political forum for advancing key reforms. Kosovo is also part of a Stabilisation and Association Process Dialogue and as part of it, Kosovo received in 2012 a roadmap for reforms, which would allow it to benefit from visa liberalisation with the EU. At the same time the EC needs to tackle the decrease in credibility of its enlargement policy as some Member States are backtracking and asking for the lifting of visa exemptions for Western Balkan countries.

The above-mentioned policies also clearly signal that Kosovo is treated as a potential EU member, but in itself this constitutes a bone of contention among non-recognizers who would prefer to see Kosovo as part of the Neighborhood Policy. It is also clear that even if Serbia were to recognise Kosovo in a near or distant future, this would hardly change the position of the five non-recognizers. The contested EU membership perspective for Kosovo means that the promise that it will not be treated differently than its neighbors could hardly be sustained for a long time.

Source picture: Kosovo's Wall of thanks, flickr