On Hezbollah, Huawei, Homosexuality, Sharon Stone and a Chainsaw: The Economic Normalization Agreement between Serbia and Kosovo

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On September 4, 2020, an economic relations agreement was signed between Serbia and Kosovo, as part of efforts to resolve the long-standing dispute about Kosovo’s independence. It was brokered by the Trump administration and signed at the White House. President Trump called the agreement historic and its signatories – the President of Serbia, Aleksandar Vučić, and Prime Minister of Kosovo, Avdullah Hoti – great leaders (for more background see here, here, and here).

As explained below, to describe this agreement as historic would be an overstatement, to put it mildly. Instead of setting the ground for what it will supposedly achieve – the normalization of economic relations between Serbia and Kosovo, thus advancing the welfare of their people – the agreement in reality seems to be a mishmash of different issues important mostly to President Trump in his campaign for the US presidential election this coming November. It is more like a New Year’s resolution list, as someone noted on Twitter, than an international agreement, whether political or legal.

Nevertheless, there is actually something peculiar and bizarrely “historic” about this agreement. It has probably never happened before that issues with regard to homosexuality, Hezbollah and Huawei (yes you read that right), none of which have any bearing for the parties to the dispute, manage to end up in the same document. It has certainly never happened before for Sharon Stone and a chainsaw to figure prominently when describing the circumstances surrounding its conclusion. And it has probably never happened before (although I say this with a bit less confidence) for an  agreement that is the result of a mediation of dispute to give more tangible benefits to a third party, entirely unrelated to the dispute (in this case Israel, with Serbia due to follow the United States and Guatemala in moving its Israeli embassy to Jerusalem) and to its mediator (Trump) than to the actual parties in dispute.

So let me tell you the story of this “historic” agreement – you’re in for a ride.

The text of the agreement

The President of Serbia and the Prime Minister of Kosovo signed two separate, non-identical documents, each containing 16 points, all but one of which were the same. The Serbian President and Kosovo’s Prime Minister never exchanged folders with the separate documents they signed, but exchanged them with President Trump. He presented each of them with different letters that he signed with a squeaking sharpie (here is the copy of the letter he has exchanged with Kosovo’s Prime Minister; see video of the signing ceremony here), acknowledging the fact that each side signed their particular paper and commending them for doing so. The form of the agreement is peculiar, to say the least; the agreement, such as it is, is clearly a political one, rather than a legally binding document. The form was likely driven by the desire of the Serbian side to avoid even implicitly recognizing Kosovo’s statehood by signing the same instrument.

Let’s start immediately with the agreement’s strangest provisions – those on Hezbollah, Huawei and homosexuality. First, as to homosexuality, this economic normalization agreement states that both parties will work to push the 69 countries that criminalize homosexuality to decriminalize it. Needless to say, Serbia and Kosovo have long decriminalized homosexuality and this has never, ever been a point of dispute between them. Second, as to Hezbollah, they pledge to designate it as a terrorist organization and to restrict its operation and financial activities in their jurisdictions. Finally, the issue of Huawei would come under the provision in which the parties agreed to prohibit in their communication networks the use of 5G equipment supplied by “untrusted vendors”, which is a designation used by the Trump administration for Huawei and other Chinese 5G equipment vendors.

All of these topics are solely items of concern for the Trump Administration generally, or for Richard Grenell, the Administration’s lead negotiator, controversial former ambassador to Germany and acting Director of National Intelligence specifically. None of them have anything to do with the normalization of economic relations between Serbia and Kosovo; some of them, like the Huawei point, may even come at significant economic costs.

Thankfully, other provisions of the agreement do deal with pertinent issues between Kosovo and Serbia. In short, the parties agreed to implement the agreements previously signed which concern a highway and two railways (brokered also by the Trump administration in February 2020), degree recognition, Merdare common crossing point (reached within the EU-led negotiations), and the so-called “mini-Schengen” zone announced by Serbia, Albania and North Macedonia in October 2019. They also agreed to diversify their energy supplies, do a feasibility study about an artificial lake located between Serbia and Kosovo, increase airline passenger screening, protect and promote the freedom of religion, protect religious sites, implement court decisions related to the Serbian Orthodox Church, continue the restitution of Holocaust-era heirless and unclaimed Jewish property, and put efforts into solving the issues of missing and internally displaced persons and refugees.

Perhaps the most important political point in the agreement that is actually relevant to the parties is the one-year moratorium on seeking membership in international organizations (Kosovo), and on the campaign to secure derecognitions of Kosovo (Serbia). Since 2013 Serbia has managed to secure 18 derecognitions of Kosovo, whereas Kosovo’s efforts to secure more recognitions of its statehood have stalled. For more on this and the derecognition of statehood in general, see my forthcoming article in the next issue of the Cornell International Law Journal, available on SSRN.

Finally, the last point was different in the two documents signed by the Serbian President and Kosovo Prime Minister. Kosovo’s version states that “Kosovo [Pristina] and Israel agree to mutually recognize each other”, while Serbia’s version provides it will “open a commercial office and a ministry of state office in Jerusalem by September 20, 2020 and move its embassy to Jerusalem by July 1, 2021.” This sudden appearance of Israel – which has had no involvement whatsoever in the Serbia/Kosovo dispute – can again only be explainable by internal US politics, as a ‘win’ for the Trump Administration calculated to attract some recalcitrant voters. Serbia in particular has thus committed, with no apparent benefit to it, to violate Security Council resolutions by moving its embassy to Jerusalem, while an ICJ case on this issue is pending, and while it is at the same time constantly referring to Council resolution 1244 as the basis for many of its claims with regard to Kosovo.

In the room where it happened… and beyond

The signing ceremony for the agreement was as peculiar as are its contents. President Vučić and Prime Minister Hoti sat at tables placed to the left and right of the so-called Resolute desk, at which President Trump sat. The tabletops of these two desks were four times smaller, and a bit lower that the Resolute desk. This scene was clearly choreographed to reflect Trump’s imperious position with his “underlings” by his side. But it also reminds me of a classroom practice in the Balkans a century ago, which instead of putting a dunce cap on a grounded student’s head used to send them to the table in the last row called magareća klupa, in literal translation – donkey’s desk. This impression is reinforced by looking at photos of President Trump’s individual talks with the two leaders. I will let the pictures do the talking.

This mise-en-scène provoked an avalanche of comments, in Kosovo and Serbia and beyond. One was particularly telling. Maria Zakharova, the (very prominent and outspoken) spokesperson of the Russian Foreign Ministry, made a post on her Facebook account which contained the photo of Serbian President Vučić sitting before an enthroned Trump, juxtaposed with a still of the famous interrogation scene from the 1992 Hollywood hit “Basic Instinct” featuring Sharon Stone in a miniskirt with her legs crossed.

Если Вас позвали в БД, а стул поставили так, будто Вы на допросе, садитесь как на фото #2. Кем бы Вы ни были. Просто…

Posted by Maria Zakharova on Saturday, 5 September 2020

 Zakharova put in the following caption: “If you are invited to the White House and offered a chair as if you are to be interrogated you should sit as shown on the photo below. Trust me.” (my translation of the caption which originally appeared in Russian). After an outcry from Serbian officials, she said she was misinterpreted, her criticisms aimed at Americans who arrogantly treated their counterparts. On the same day, President Vučić had a telephone conversation with Russian Foreign Minister Lavrov. Zakharova’s breakthrough in diplomatic communication in the digital age is hard to deny.

And then, not to be forgotten, there is President Vučić viral moment of unwanted memeification.  This came during President Trump’s address on the contents of the agreement, just before the signing ceremony, when he gets to the point of explaining that Serbia agreed to move its embassy to Jerusalem. At this moment Serbian President Vučić looks surprised, goes back to the paper he is about to sign, turns a page, seems to find the provision, reads it, then looks to his right (probably at his delegation), then exhales deeply wiping his forehead. Did he want to check the text once again? Was the provision inserted without his knowledge? Was is it reformulated by his hosts when compared to some previous version? This would be unheard of, but today, who knows…

There’s a lot of love in the spin room

Predictably, the main actors of this charming endeavor made comments about the agreement that were entirely in accordance with their existing narratives, primarily for internal political purposes. President Trump was especially eager to present the agreement as historic, one that only he could deliver. When asked what his was role in reaching the economic agreement and why it took decades to get to it Trump replied: “Well, I can tell you that it took decades because you didn’t have anybody trying to get it done. We’ve been working on this for — almost from the beginning of the administration. And you had some deep-seated feelings and long-term feelings, and there was a lot of fighting, and now there’s a lot of love [sic!], and that’s the way it’s going to be. I think they’re going to have a tremendous relationship. And the economic is going to bring them together. It’s going to unify the two countries. And it was just something that was so obvious to me, right from the beginning […].” (you can read the whole transcript of what was said at the meeting in the Oval Office here). He continued on Twitter with: “Another great day for peace with Middle East – Muslim-majority Kosovo and Israel have agreed to normalize ties and establish diplomatic relations. Well-done! More Islamic and Arab nations will follow soon!” and “Everyone said it couldn’t be done. But for the first time in a generation, there will be direct flights between Serbia and Kosovo. Another win.”

Kosovo’s Prime Minister expressed gratitude to Trump and a wish to work toward full normalization “that should lead eventually to mutual recognition between the two countries”. Serbian President Vučić said the agreement was “a huge step forward,” but obviously made no encouraging comments about recognition.

His positive tone was in striking contrast to comments by the Serbian leadership before the meeting. For days before going to Washington, the Serbian public had been told that the talks would be tough, that Serbia will be pressured to recognize Kosovo, while the president was resolute that he would do his best, that he would not surrender. (Needless to say, the Serbian public was told nothing about homosexuality, Hezbollah, Huawei, or Jerusalem). A day before the signing of the agreement, Serbian delegation claimed that they were presented with an agreement containing a provision on the recognition of Kosovo’s statehood. The Minister of Finance, Siniša Mali (whom the University of Belgrade stripped of his PhD title due to plagiarism last year, without consequence to his ministerial career), claimed this to have been “the worst paper we ever got”. One Belgrade daily newspaper reports that after seeing that paper Mr. Vučić said in private to the rest of Serbian delegation: “I will not sign this even if I was to be chopped into pieces by a chainsaw” (my translation from Serbian original available here).

In the end, happily, no chopping into pieces took place, even if (somehow) the agreement resulted in one more state – Israel – recognizing Kosovo. The claim that the agreement contained the provision on Kosovo’s recognition by Serbia was denied by the Americans (on that see here). Nevertheless, President Vučić continued to use this to portray his visit to Washington as a great victory, where he, through superhuman effort, managed to avoid recognizing Kosovo (again, Israel remains unexplained). He even claimed that he signed a bilateral treaty with the US, which was again denied by the White House.

The bottom line

Considering the years of stagnation and painstaking advances in resolving the Kosovo problem, any agreement, however peculiar, between Kosovo and Serbia about anything still looks as a good thing. However, this agreement is in its substance a little more than an empty shell containing a mixture of promises already made by the parties and Trump’s election campaign points. There is nothing historical about it except how odd it is (viz. Huawei and Israel). Finally, the way it has been pitched, negotiated and signed (and commented on by Russia) is a sad reminder of the poor state of international affairs and cooperation, which disregards the basic tenets of diplomatic practice (viz. the sovereign equality of chairs and desks).

It is also important to note that this agreement seems to have been brokered without any coordination with the EU, which evidences lack of transatlantic coordination typical ever since President Trump took office. It should be recalled that, for its part, the EU has been facilitating negotiations between Belgrade and Pristina since March 2011 on the basis of the UNGA Resolution 64/298 adopted after the International Court of Justice delivered its advisory opinion on Kosovo’s declaration of independence. These negotiations led to many important and practical agreements, many of them still unimplemented. Some of these agreements were indeed historic, like the First Agreement of Principles Governing the Normalisation of Relations, better known as the Brussels Agreement, of April 19, 2013. While the substance of this agreement was not corresponding to its name (it mainly aimed to integrate in Kosovo legal system four northern Kosovo municipalities with overwhelming Serb majority, which were not recognizing Kosovo authorities), from the political perspective it indeed signified normalization and thawing of relations between Serbia and Kosovo. Moreover, this was the first agreement signed by the highest officials of Serbia and Kosovo, Ivica Dačić (Serbia) and Hashim Thaçi (Kosovo). The importance of this is more evident if we take into consideration that, until October 2012, all (not just the highest) Serbian officials practically refused to even be in the same room with Kosovo representatives; they would be leaving meetings if Kosovo delegation was not accompanied by an UNMIK representative (see more in my articles, available on SSRN here and here). It looked as if they feared to accidentally recognize Kosovo as an independent state even by breathing the same air-conditioned conference air with them. After all that, an agreement on normalization in 2013 was indeed a break-through.  

But here we are, back in 2020. This whole affair would make a good case study for students taking a course in public international law. They can discuss if an agreement has indeed been concluded, whether the agreement is a political or legal in nature, are there any issues related to the expression of consent to be bound, what was actually agreed upon if the texts signed by each party do not correspond, what was the role of the US President and whether the implementation of any provision would lead a party to commit an internationally wrongful act (such as the one of Serbia moving the embassy in Israel from Tel Aviv to Jerusalem). I deliberately do not go into these issues in more detail, because I think that the whole affair and its bizarre details are at the moment much more interesting as an illustration of what seems to be the all-out corruption and deterioration of the international order that we are witnessing. From that point, it seems appropriate to conclude this post with the sentence of the National Security Advisor, Robert O’Brien, given at the press conference at the White House after the signing ceremony. After enumerating all Trump’s achievements, calling him a true peacemaker (video, 2:38), he stated: “These things could only happen with the Trump administration.” (ibid., 3:07). Truer words have never been said.

In the meantime, Kosovo and Serbia are continuing their negotiations in Brussels this week.

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Comments

Velimir Zivkovic says

September 8, 2020

Brilliant analysis, Tatjana. It is indeed a somewhat surreal mess of an 'agreement' and an even bigger one in terms of reactions to it.

Stefan Talmon says

September 9, 2020

Brilliant post!

Nicolas Boeglin says

September 9, 2020

Dear Professor Papic

Many thanks for this extremely well documented and brilliant post. A great analysis that I will share with some colleagues.

My sincere compliments for showing us a clear example of a "President´s memeification".

Sincerely yours

Nicolas Boeglin