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KosovoLocalGovernmentInstitute

ASSOCIATION/UNIONtwo names, two aims

Author: Besnik TahiriExecutive Director, Kosovar Institute for Local Governance

This publication is supported by the Friedrich Ebert Stiftung (FES)

July, 2015

Impressum

Editor:

Friedrich-Ebert-Stiftung

The editorial Office:

Friedrich-Ebert-Stiftung Office, Prishtinë, Kosovë

Pashko Vasa Str. 7 (Pejton Place) 10000 Prishtina

Tel: +381 38 221 108

+381 38 221 109

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Printing and Production, Cover Design – July 2015

“Metton Reklama” - Podujevë

Copyrights: Kosovo Local Government Institute and Friedrich-Ebert Stiftung

Disclaimer

The views and opinions expressed in the report do not necessarily reflect the posi�on of Friedrich-Ebert-S��ung

Acknowledgement

I would like to express my apprecia�on and sincere gra�tude to everyone who contributed in this report.

Specially, I would like to thank Friedrich-Ebert-S��ung and the Norwegian Embassy for the support.

The research team: Mr. Besnik Muçaj, coordinator; Mr. Albinot Maloku, senior researcher;

Mr. Ilir Krasniqi, desk researcher: Mr. Granit Thaçi, field researchers and assistants;

Drenushë Isufi and Valmir Gashi.

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mailto:[email protected]

http://www.fes-prishtina.org

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ASSOCIATION/UNION - two names, two aims

INDRODUCTION.........................................................................................................................4

RESEARCH METHODOLOGY....................................................................................................5

I. THE CONTEXT.........................................................................................................................7

I. A. THE LEGAL CONTEXT PRISHTINA PERSPECTIVE.........................................................8

I. B. THE LEGAL CONTEXT BELGRADE PERSPECTIVE.......................................................10

II. THE RULING OF THE KOSOVO CONSTITUTIONAL COURT ON THE BRUSSELS AGREEMENT............................................................................11

III. THE RULING OF THE SERB CONSTITUTIONAL COURT ON THE BRUSSELS AGREEMENT............................................................................12

IV. THE PRISHTINA POSITION AND THE POINT OF VIEW ON THE ASSOCIATION............13

V. THE BELGRADE POSITION AND THE POINT OF VIEW ON THE ASSOCIATION............17

VI. THE POSITION ON THE ASSOCIATION FROM THE INTERNATIONAL COMMUNITY POINT OF VIEW................................................23

VI. ASSOCIATIONS IN THE DIFFERENT COUNTRIES OF THE REGION, A COMPARISON...................................................................25

The Republic Of Kosovo.............................................................................................................25

The Republic Of Montenegro.....................................................................................................25

The Republic Of Serbia..............................................................................................................25

Bosnia And Herzegovina............................................................................................................26

CONCLUSIONS.........................................................................................................................27

RECOMENDATIONS.................................................................................................................30

..

REFERENCES...........................................................................................................................31

INTRODUCTION

The Brussels talks, for and about Kosovo, between the �overnments of Kosovo and

Serbia, that have started as a technical dialo�ue but that have surely turned into poli�cal

ne�o�a�ons, have produced different conclusions and a�reements. S�ll, the First

A�reement of Principles Governin� the Normalisa�on of Rela�ons�, reached in Brussels

on 19 April 2013� and in which the ini�als of the par�es were si�ned� is both bein�

considered historical and challen�in�.

It is considered historic mainly in Kosovo while it's considered challen�in� both in Kosovo

and in Serbia. However, the challen�e is not perceived in the same way by the par�es and

it is so mainly because of different aims of the par�es from the same process. Both sides,

since the moment of the si�nin� of the ini�als, have interpreted the Brussels A�reement

in their own ways and interests. Appart from si�nin� the ini�als of the Prime Minister on

the paper, Serbia did not ra�fy the a�reement in their Parliament while Kosovo has

ra�fied it. The only procedural element in common for both countries about the

A�reement is that in both countries, by the ini�a�on of respec�ve MP's the a�reement

was sent in respec�ve Cons�tu�onal Courts for an opinion concernin� the le�ality and

cons�tu�onality of the a�reement. Both Courts have officially declined to �ive an

opinion on the interna�onal a�reement.

15 of the points of the Brussels A�reement have been set to mo�on. However, the most

important point, the Establishment of the Associa�on/Union of the Kosovo Serb

Majority Municipali�es is s�ll bein� discussed and Ne�o�ated.

With this report, the Kosovo Local Government Ins�tute will try to shed some more li�ht

on the issue. By applyin� a more detailed study from the le�al and poli�cal point of view,

by usin� compara�ve methods and by encompassin� the standin�s of the main par�es

and actors involved in the process as well as a number of professionals of the field, civil

society leaders and think tank representa�ves, we hope to offer to the reader a

comprehensive and useful document for both students of the field as well as for all the

people involved in the process of the dialo�ue.

� The official name of the agreement� In the rest of the text it will be referred as the “Brussels Agreement” or simply “the Agreement”� The former Prime Minister of Kosovo Hashim Thaçi, the former Prime Minister of Serbia, Ivica Dačić mediated by the Baroness Catherine Ashton of the EU

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As ar�ued above, the Associa�on/Union of the Kosovo Serb Majority Municipali�es� is

amon�st the most important points of the A�reement if not The most important. It is

described in points 1 to 6 and it has been paid a lot of a�en�on. Yet, it is s�ll not bein�

implemented. KLGI has iden�fied a ran�e of disputable but very important elements of

the A�reement. They are as follows; 1. The le�al arran�ement of the A/USM, 2. The field

of Competences of the A/USM, 3. The Statute of the A/USM, 4. The poli�cal powers of

the A/USM, 5. The rela�ons of the A/USM with Kosovo and it's ins�tu�ons, 6. The

Rela�on of the A/USM with the state of Serbia, 7. The rela�on of the A/USM with the

third par�es. While analysin� the reported materials, le�al or poli�cal, from both

perspec�ves, of Kosovo and Serbia, we have reached a conclusion that there are two

different �oals that par�es want to achieve, while both aim in doin� that throu�h the

Kosovo le�al system. As a star�n� point, we have considered the different points about

the way the associa�on/union will be called. We have concluded that the problem of the

name is the �p of the iceber� and it just hi�hlits the different aims on the dialo�ue

process.

THE RESEARCH METHODOLOGY

The KLGI in this paper has used a research methodolo�y that has brou�ht to focus a

variety of standin�s and opinions. It was made possible to understand the issue more

deeply and to offer a ran�e of solid recommenda�ons. It is aimed that the

recommenda�ons will be useful for the policy makers. The unfoldin� of the events as

well as the very defini�on of the A/USM will have lon� term implica�ons in the lives of all

ci�zens of Kosovo and in the quality of our democracy. The research methods were as

follows:

· Gatherin� and structurin� the views from different media reports on the A/USM,

mainly from the Prish�na and Bel�rade television, newspapers and online media. · Gatherin� and structurin� the views from the official posi�ons of the main

�overnment actors both in Prish�na and Bel�rade, Presidents, Prime Ministers and the

Ministers of Forei�n Affairs.· Gatherin� and structurin� the views from the main interna�onal actors on the

issue, in Prish�na, Bel�rade and Brussels.· The analysis of the rulin�s of the Cons�tu�onal Courts of Kosovo and Serbia on

the issue of the cons�tu�onality of the a�reement with the respec�ve cons�tu�ons.

�In the rest o� the text, the Associa�on/Union o� the Kosovo Serb Majority Municipali�es A/USM

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The study did also used direct interviews with - Hi�h �overnment officials both in Kosovo and Serbia.- Kosovo local �overnment representa�ves- Representa�ves of the civil society, ac�ve on the issue- Academics and researchers on the cons�tu�onal ma�ers in Prish�na and

Bel�rade- Media representa�ves from both ethnic �roups, Albanian and serb, in Kosovo and

also in Serbia- The mayors of Mitrovica South and Mitrovica NorthThe specificity of the issue has forced us to use dual namin� on certain issues but on the

le�al ma�ers we refer solely to the Kosovo cons�tu�onal terminolo�y. The whole

methodolo�y is oriented towards findin�s that would eventually offer possibili�es for

stability and fulfilment of the needs, first of all for the ci�zens of Kosovo and specifically

for the ci�zens of the municipali�es that will make the 'associa�on/union'.

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I. THE CONTEXT

The main component of the Brussels A�reement that s�ll remains to be implemented is

the crea�on of the Associa�on/Union of the Serb Majority Municipali�es in Kosovo. In

contrast with other points such as the courts and the police in the north of Kosovo, that

have started bein� implemented, this part of the a�reement is s�ll raisin� many tensions.

One of the first and the most important points of the a�reement is s�ll bein� discussed.

Actually, almost no one is dispu�n� the fact that the subject is much more a poli�cal than

a le�al dispute. Star�n� from the very name, A/USM shows two different aims. We will

start by explainin� the meanin� of both the associa�on and the union referin� to the

Oxford Dic�onary of En�lish Lan�ua�e. The associa�on is a �roup of people havin� the

same interests. While the Union is the act of uni�n�, of joinin�, in a structured form, of

people livin� in the same place with the same or similar characteris�cs. In the Serb

version of the A/USM the word “zajednica” is used and it is a simple transla�on of the

En�lish word “union”.

We have put the previous para�raph in such a way only to hi�hli�ht two points: first, to

prove that there are two different interests (aims), on the ins�tu�onal structurin� of the

Serb community in Kosovo and second, to show that while the Union should have a

func�onin� structure per se, the Associa�on, apart from condi�onally bein� able to

preserve cultural, ethnic, reli�ious or other iden�ty, should not have a func�onin�

structure per se. This whole explana�on is literally theore�c, since accordin� to the

a�reement, the A/USM will have its President, vice-President, the Assembly and the

council�, and every detail will be framed similarly to the Associa�on of the Municipali�es

of Kosovo. Even thou�h the A�reement uses two names, the Kosovo law uses only one

name, “the Associa�on” so in case a new name should be adopted, a number of Kosovo

laws should chan�e. While observin� this framework and the differences between the

par�es, we can conclude that the Brussels A�reement is not the final solu�on of the

problem but the be�innin� of new le�al trouble for Kosovo. The A�reement does not

specify that the A/USM will have execu�ve powers but completely representa�ve with a

monitorin� func�on that s�ll has to be defined. Because of the fact that the defini�on of the A/USM is not possible at this point in �me

we did not dedicate it much space in the report. We will pay more a�en�on to the le�al

and the poli�cal context and also to the different ways have understood the A/USM and

especially the past and current official posi�ons of the hi�h level �overnment officials in

Kosovo and Serbia.

�First A�reement o� Principles Governin� the Normaliza�on o� the Rela�ons, 19. April 2013, Point. 3

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a) THE LEGAL CONTEXT Prish�na perspec�ve

The Kosovo Cons�tu�on that has entered into force on June 15. 2008 defines solely two

levels of �overnance in Kosovo, the Local (or municipal) and the central one. The

or�aniza�on and the func�onin� of the municipal level of �overnance is re�ulated by the

Law on Local self-�overnment in Kosovo�.

Apart from adop�n� relevant primary and secondary le�isla�on and passin� of wide

competencies to the municipali�es, derivin� from this law, new municipali�es were

created as well, mostly Serb majority ones. Star�n� from the posi�on and the powers

that the municipali�es have based on this law, includin� the Serb Majority

Municipali�es, almost all the analysis of the researchers, Kosovar and Interna�onal, have

concluded that the powers of the local �overnment in Kosovo have been well defined

and properly dele�ated.

So the first step towards fulfillin� the requirements for decentraliza�on in Kosovo has

been made, especially for the serb ethnic community in Kosovo. The Le�al re�ula�ons

have set the framework.

The Brussels A�reement that defines the requirement for the establishment of the

A/USM also states that the A/USM will be established based on the competencies

defined by the Kosovo law�. If the case is simple, meanin� the exis�n� law, than it should

be noted that the actual law does not foresee any addi�onal competencies for

municipali�es or the associa�on. Furthermore, the current law does not 'reco�nize' the

name “union” but only the name associa�on.

If the a�reement will be different, we should be thinkin� of complicated and difficult

procedures for addop�n� a new law. And s�ll, as noted above, the name itself is not the

most difficult issue.

An addi�onal difficulty for the crea�on of the A/USM is it's very le�al status which, if it is

created based on the Kosovo Cons�tu�onal order, will not be able to press char�es or be

char�ed in the courts or even to raise cases before the Cons�tu�onal Court, to own or to

mana�e municipal property, to own or co own any municipal asset or interest company. This is all due to the fact that it will be in collision with the Law on Local Self Government

and other le�isla�on that re�ulates ownership rela�ons and competencies in Kosovo.

�The Law on Local Sel� Government (Law Nr. 03/L-40) h�p://www.kuvendikosoves.or�/common/docs/li�jet/2008_03-

L040_al.pd��The use o� the concept “under Kosovo Law” has no direct meanin� since it does not speci�y which law or even i� this is understood

as “in con�ormity with the powers de�ned by the European Charter on Local Sel� Government.

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The definin� of the boundaries of the A/USM by bypassin� the actual municipal

boundaries in Kosovo would also be in direct collision with the Kosovo law.

It should be stated here that based on the Law on Local Self Government in Kosovo the

municipali�es enjoy the ri�ht to associate and to become members of non profit

or�aniza�ons of a juridical person, that protect and promote the interests of local

authori�es while the main objec�ve should be the encoura�ement of the applica�on of

the rules derivin� from the European Chart on the Local Self Government that, as such

aims towards the coordina�on of the interests of respec�ve municipali�es. Based on

this, the crea�on of the 'Associa�on of the Kosovo Serb Majority Municipali�es' cannot

be prevented, as lon� as it remains as an associa�on that represents and promotes the

ri�hts of the communi�es that �overn those municipali�es. Such an associa�on can be

created also based on poli�cal or other affilia�on.

In contrast to all what was said above, the A/USM should be cons�tuted based on the

a�reement that was ini�alized by Kosovo and Serbia by their respec�ve Prime Ministers.

This a�reement was also ra�fied in the Kosovo Assembly�, an act that also explains the

Kosovo a�tude and understandin� towards A/USM, as a crea�on that will not require

the chan�e of the applicable law in Kosovo.

�Law Nr. 04/L-199 on the ra��ca�on o� the First Interna�onal A�reement Governin� the Principles o� the Normaliza�on o�

Rela�ons Between the Republic o� Kosovo and the Republic o� Serbia

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b) THE LEGAL CONTEXT Bel�rade Perspec�ve

In the cons�tu�on of the Republic of Serbia, more precisely on the chapter that re�ulates

the territorial aspects of Serbia it stands, that the republic of Serbia has it's Autonomous

Province of Vojvodina and the Autonomous province of Kosovo and Metohija as well as

the local units as municipali�es, ci�es and the city of Bel�rade. Amon�st others, it is

stated that “the substan�al autonomy of the Autonomous Province of Kosovo and

Metohija shall be re�ulated with a special law that will be adopted with the same

procedure as the one for the chan�e of the cons�tu�on�”. Despite this provision Serbia

din neither, nor did it chan�e the cons�tu�on nor adopted the special law that re�ulates

the substan�al autonomy for 'Kosovo and Metohija, as the current cons�tu�on requires.

No doubt that what Serbia requests re�ardin� the A/USM and what is wri�en in its

Cons�tu�on are in contradic�on. This, amon�st other thin�s, means that Serbia is also

the party that is slowin� down the crea�on of the A/USM in Kosovo.

In a purely le�al aspect, the insis�n� of Serbia in presen�n� Kosovo as the Inte�ral part of

the Republic of Serbia and the call for a poli�cal deal that completely distorts the internal

cons�tu�onal arran�ements is neither ra�onal nor lo�ical. The decentraliza�on in

Kosovo has been a �enerous plan althou�h much imposed by the Ah�saari Plan (that was

not accepted by Serbia). The Bel�rade ini�a�ves and the pace of the implementa�on of

the already reached a�reements combined with the above men�oned ar�ument

hi�hli�hts the fact that lack of an a�reement that establishes the A/USM is not solely the

'fault' of Prish�na. Bel�rade did not show a clear commitment as well.

�Ustav Republike Srbije, 2. Autonomne Pokrajine, Clan 182, strana 90. Sluzbeni Glasnik, 2007, Beo�rad

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II. THE RULING OF THE KOSOVO CONSTITUTIONAL COURT ON THE BRUSSELS

AGREEMENT

A�er the ra�fica�on of the First A�reement Governin� the Principles of the

Normalisa�on of Rela�ons between the Republic of Kosovo and the Republic of Serbia��

by the Kosovo Assembly, Visar Ymeri and eleven other Members of the Assembly asked

the Cons�tu�onal Court for an opinion re�ardin� the cons�tu�onality of the A�reement.

The Cons�tu�onal Court did take the case, analysed it and brou�ht the rulin� Nr.

KO95/13 accordin� to which the request for an opinion by Visar Ymeri and 11 Members

of the Assembly of Kosova on the cons�tu�onality of the Brussels A�reement was

refused because it fell outside the domain of the Court��.

However, the Cons�tu�onal Court did not clarify the issue en�rely. If an interna�onal

a�reement does fall outside of the domain of the Cons�tu�onal Court rulin� than an

explana�on is needed on the cons�tu�onal and le�al implica�ons of the implementa�on

of the a�reement and whether a new le�al situa�on is needed for this ac�on.

�� The request o� Visar Ymeri and eleven other Members o� the Assembly to the Cons�tu�onal Court, the case Nr. KO��⁄�� was

submi�ed with re�erence to the Republic o� Kosovo and the Republic o� Serbia, by precizin� amon�st which en��es the

a�reement was reached althou�h the o�cial name o� the document does not contain the names o� the par�es as “the

Republic o�…”�� The Cons�tu�onal Court o� Kosovo Akt�jykim në Ras�n Nr. ��KO/��,

h�p://www.�jkks.or�/repository/docs/�jkk_ko_��_��_shq.pd�

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III. THE RULING OF THE CONSTITUTIONAL COURT OF SERBIA ON THE

BRUSSELS AGREEMENT

UNLIKE Kosovo, Serbia did not ra�fy the a�reement. S�ll, in Serbia the Cons�tu�onal

court was also asked about the cons�tu�onality of the a�reement��. The Cons�tu�onal

Court of Serbia did rule that the ini�aliza�on of the A�reement was in viola�on with the

Cons�tu�on of Serbia and requested from the �overnment to make the necessary

chan�es within a limited �me. Since this could not be done, the than Minister of Jus�ce,

Nikola Selaković �ave the ar�ument that the Brussels A�reement was not a le�al but a

poli�cal act and that the Cons�tu�onal Court of Serbia should Rule that it is outside of

the domain of the Court to rule on the ma�er. Based on the proposal put forward by

Minister Selaković, the Cons�tu�onal Court of Serbia ruled out the proposi�on on

evalua�n� the cons�tu�onality and the le�ality of the Brussels A�reement under the

case Nr. IUo-247/2014. This does mean that the Cons�tu�onal Court of Serbia ruled that

the A�reement was not a le�al act but a poli�cal one and as a consequence no ci�zen of

Serbia is le�ally obli�ed to respect the rules of the A�reement.

Seen from this perspec�ve, Serbia does not have any le�al backin� for the

implementa�on of the A�reement. It is all converted into a poli�cal opera�on for the

new internal cons�tu�onal arran�ement of Kosovo where Serbia does not have any

jurisdic�on de facto. This has to a certain de�ree improved Serbia's internal challen�es as

well as their posi�on vis-à-vis the interna�onal community.

��Ustavni Sud Republike Srbije, Zaključak, Br. IUo-��⁄��, h�p://sl�lasnik.in�o/sr/��-��-��-��⁄��-zakljucak-ustavno�-suda-broj-iuo-

��-��-i-izdvojena-misljenja-sudija.html

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IV. THE POSITION ON THE ASSOCIATION, the Prishtina viewpoint

The hi�hest �overnment officials of Kosovo have held suppor�n� posi�ons on the

Brussels A�reement, at points even considerin� it a historical A�reement. The President

of the Republic of Kosovo, A�fete Jahja�a in one of the statements, called the A�reement

a new pa�e in the rela�ons between Kosovo and Serbia. “The Brussels A�reement

between Kosovo and Serbia, facilitated by the European Union and with the full support

of the United States marks a new pa�e in our rela�ons, it is a direct contribu�on towards

peace and stability, mutual a�reements and coopera�on in the benefit of the ci�zens of

our countries. This is also a precondi�on for both our countries in our path towards

European inte�ra�on��.” In another statement on the crea�on of the A/USM president

Jahja�a stated that “the Associa�on of the Serb Municipali�es does not imply a poli�cal

and territorial autonomy neither the second or the third layer of �overnance but

coopera�on between municipali�es, as it is provided by our Cons�tu�on��” the office of

the President of Kosovo never did specify as to how will the A/USM will be created

accordin� to our Cons�tu�on, it just did state that it should.

The former Prime Minister of Kosovo, who did put his ini�als on the paper of the Brussels

A�reement, has considered the A�reement a “model” as to how re�ional problems

should be solved. “The 19th of April A�reement should serve as a model of solvin�

disputes that bother our re�ion and much wider��” Mr. Thaçi was quoted sayin� in the UN

Security Council Mee�n�. Amon� others, Mr. Thaçi has '�uaranteed' that the associa�on

is solely a consulta�ve body and nothin� more. “The statute, the form, the or�aniza�on

and the func�onin� of this body will be completely in conformity with the law and the

cons�tu�on of Kosovo and the 19th April A�reement reached in Brussels. So any other

preten�on or any other interpreta�on, for a different func�onin� will be unacceptable

and not implementable.

This is the posi�on of the Republic of Kosovo and of the European Union��.” Later he has

added that the Associa�on of the Municipali�es “will be a consulta�ve mechanism, non-

obli�atory and will have no execu�ve or le�isla�ve powers under any circumstances��.”

��Jahja�a: noone looses with this a�reement; h�p://www.president-ks�ov.net/?pa�e=1,10,2867#.VX�zpv-qqkp ��Asociacioni i Komunave Serbe vetëm, sipas Kushtetutës së Kosovës; h�p://www.tele�ra�.com/lajme/asociacioni-i-

komunave-serbe-vetem-sipas-kushtetutes-se-kosoves-2-38571.html ��The presenta�on o� Prime Minister Hashim Thaçi in �ront o� the UN Security Council Mee�n� h�p://www.kryeministri-

ks.net/?pa�e=1,9,4001 �� Thaçi: the Associa�on o� the Serb Municipali�es is not a Republic; h�p://www.evropaelire.or�/content/ar�cle/��.html �� Ibid

13


The new Prime Minister, Isa Mustafa has supported the Brussels A�reement and has

pled�ed to fulfil all the obli�a�ons that derive from it��. He did especially refer to the

crea�on of the A/USM. He said that “the A�reement reached last year in Brussels as well

as other a�reements, have contributed in the improvement of the lives of the ci�zens in

the socio-economic plan, in the free movement and security, in the inte�ra�on of the

Kosovo Serb ci�zens of the north in the state ins�tu�ons of Kosovo, in the dismantlin� of

the Serb ille�al structures in the fields on which the a�reements were reached.” He did

link thou�h, the establishment of the A/USM with the solu�on on the issues of Jus�ce

and the dismantlin� of the civil protec�on structures, he has said that “findin� the

solu�on on the issues of jus�ce and the dismantlin� of the civil protec�on structures,

that will be of a priority in the followin� mee�n�s, will create an opportunity for the

discussion on the crea�on of the Associa�on of the Serb Majority Municipali�es based

on the exis�n� Kosovo law and the Cons�tu�on of the Republic of Kosovo as it is provided

by the Brussels A�reement��.”

Kosovo analysts and students of the social and poli�cal condi�ons, asked by the KLGI

researchers, have �iven different views, explana�ons and ar�uments on the A/USM. Riza

Smaka, the professor of the Cons�tu�onal Law, considers that the law on establishin�

A/USM “should not in any case contain any clauses that will be in a viola�on with the

Cons�tu�on and that would eventually create condi�ons for a poli�cal autonomy, an

administra�ve autonomy is already provided by law��.” He did �o on to explain that “the

crea�on of the Union, means in itself the crea�on of an ethnically based en�ty and as

such, it would be in a direct viola�on with ar�cle 1 of the Cons�tu�on of the Republic of

Kosovo that states that Kosovo is an independent, soverei�n, democra�c, unique and

undividable state and that it is a state of it's ci�zens. The scale of the independence of the

union of the Serb Majority Municipali�es will determine the cons�tu�onal character of

our country and not only, it will determine whether it will be a republic, or a

federa�on?��”

When asked what he believes on the inte�ra�on of the Serb community and the crea�on

of the A/USM, Smaka answers: “the crea�on of the Associa�on of the Serb Majority

Municipali�es under the circumstances will unfortunately create condi�on for further

isola�on of the Serb community from the rest of the ci�zenry of Kosovo. I do not know

how lon� that situa�on would last, but I am sure it will last enou�h if not forever. I believe

that any solu�on to the issue should be based on the Ar�cle 1 of the Cons�tu�on��.”

�� Remarks o� Prime Minister Musta�a in the Kosovo Assembly, h�p://www.kryeministri-ks.net/?pa�e=�,�,�� Ibid��Interview with Pro�. Riza Smaka��Ibid��Ibid

14


In contrast with Prof. Smaka, Prof. Nexhmedin Spahiu says that the A/USM is just another

name for 'Republika Srpska'. “The Serb community in Kosovo is poli�cally very stron�, so

the crea�on of the A/USM will not �rant them with more powers, it will just set the way

for more Bel�rade control over them. Moreover, with the crea�on of the Associa�on,

Serbs will not inte�rate; they will just formalize their isola�on��.”

The Mayor of Mitrovica South Municipality, A�im Bah�ri, thinks that the very name of

the Associa�on of the Serb Majority Municipali�es is insul�n� for other communi�es

that live in Kosova and in these municipali�es. He believes that it should be called “the

Associa�on of the Northern Kosovo Municipali�es��” he believes that the Associa�on is a

poli�cal crea�on and that in the future “there will be addi�onal poli�cal requests that

neither Kosovo nor the Interna�onal community will be willin� to �rant.��”He does not

believe that the very idea of the crea�on of the Associa�on has started with the aim of

providin� be�er services to the ci�zens or to improve the coopera�on between

municipali�es, a�ain, in the best interests of the ci�zens.

Naim Rashi� from the Interna�onal Crisis �roup has yet another viewpoint. He believes

that “the crea�on of the Associa�on is one of the key elements of the A�reement and

that, in the administra�ve aspect, it will wrap up the inte�ra�on of the Kosovo Serbs in

the Ins�tu�onal life of Kosovo and that it will completely eliminate the parallel

ins�tu�onal set up of Serbia in Kosovo��.” He adds that “s�ll the very no�on of the

Associa�on is not defined precisely; there are double meanin�s in almost every element

of it, star�n� with the lan�ua�e used to describe it but not only that��.” He believes that

the no�on of the associa�on was used differently by different par�es. In the north it was

used to sell the Brussels A�reement to the local popula�on, for example. He also adds an

important element to him, “the expecta�ons on the Associa�on were deliberately

lowered in Prish�na and amon�st Albanians, while in Bel�rade and amon�st Kosovo

Serbs they were raised.

The Brussels A�reement is supposed to be a win-win situa�on for both Kosovar

Albanians and Serbs, and I believe it is so. In the other hand, Serbia does not see it as a

win-win situa�on for them, so they play a different card, they want to �et the most for the

Associa�on so that they can control the Kosovo Serbs and use them as a bar�ainin� chip

for the EU. Inside Kosovo, as men�oned, Kosovar Albanians will �et the full soverei�nty

and territorial inte�rity; will stabilize the judicial situa�on in the north etc., while Kosovo

Serbs will win a hi�her de�ree of autonomy, beyond 'Ah�saari'��.”

��Interview with Nexhmedin Spahiu�� Interview with A�im Bah�ri, Mayor o� Mitrovica South��ibid��Interview with Naim Rashi��ibid��ibid

15


He also believes that there can be no situa�on in which the week municipali�es will

create a stron� Associa�on but quite in contrary. Stron� municipali�es can create a

stron� Associa�on. Rashi� does not see the A/USM as a different name for 'Republika

Srpska' even thou�h he thinks that there is an open ambi�on of some people to it. He

ar�ues that Republika Srpska has a veto power, an army, its own police etc., these are all

elements that the Associa�on will not have. He believes that Serb majority municipali�es

should be stren�thened and not wait for the crea�on of the Associa�on.

The Former Minister of Local Governance Administra�on, Sadri Fera� believes that the

crea�on of the Associa�on will be a real challen�e for Kosovo. He also insists that the

le�al and Cons�tu�onal order of Kosovo should be preserved in the current form. He

does not believe that Bel�rade aims are towards “crea�n� condi�ons for be�er life for

Kosovo Serbs, ensurin� their ri�hts, and the development of the community, in contrary,

Serbia wants to establish a de jure control over Kosovo Serbs and have a hi�h de�ree of

influence in Kosovo��.” Fera� thinks that the Associa�on should be a voluntary

connec�on of the municipali�es and that it should not be locked. The associa�on should

not be able to make bindin� decisions for municipali�es, he adds. He believes stron�ly

that Kosovo should not in any case allow for the middle layer of �overnance. He believes

that under normal condi�ons, an Associa�on should be suppor�ve for the inte�ra�on of

the minority communi�es but in this case he is scep�cal. Fera� thinks that the a�empt to

create boundaries for the associa�on will represent e brutal breach of the Cons�tu�on of

Kosovo and the Law on Local Self-Government. He thinks that the associa�on can have its

symbols but ones that will be acceptable for all communi�es livin� in the municipali�es

that will form the Associa�on. He believes that Kosovo should not be afraid of the

Brussels A�reement but of elements that want to make Kosovo dysfunc�onal.

��Interview with Sadri Fera�

16


V. THE POSITION ON THE ASSOCIATION Belgrade viewpoint

Before the Brussels A�reement was ini�alized, the President of Serbia, Tomislav Nikolić

presented an idea called “The poli�cal Pla�orm for the talks with the representa�ves of

the Provisional Ins�tu�ons of self -�overnment of Kosovo” amon�st other thin�s, in the

'pla�orm' it is said that “The Republic of Serbia, insists on the crea�on of the

Autonomous Union of the Serb Municipali�es in Kosovo and Metohija which will be a

territorial union of four northern municipali�es and other municipali�es with Serb or

other community majori�es e.�. Gračanica, Strpce, Gora etc. this Union will have its

unique Statute for the autonomy of the Union �uaranteed by the Cons�tu�on of the

Province and the public declara�on by the representa�ves of the interna�onal

community involved in the process��” star�n� from this, it is clear that when the

President of Serbia talks about the A/USM, he talks about an autonomous union, in fact

an autonomy within an autonomy, since Kosovo is referred to as an Autonomous

Province of Serbia. Mr. Nikolić at one point did say that Prish�na was �ivin� up but never

specified on what, while later he has said that “this Union cannot make laws but it can

make its own rules within the framework of the laws that in the end of the day all

European countries have. On this we do not differ much since there are many unions alike

that live in peace and freedom��” he is s�ll insis�n� that the A/USM should be

autonomous and that it should have the same de�ree of autonomy that Kosovo enjoyed

under 1974 Cons�tu�on of SFRJ��The Prime Minister of Serbia, Aleksandar Vučić has told Kosovo Serb ci�zens that

“althou�h the Brussels A�reement is not perfect, the people should not be afraid of it��”

he has added that the A�reement is a result of 'what could be achieved'. The fact that he

did not have his ini�als on the paper of the A�reement and that he was not directly

responsible for the A�reement le� him with more space to maneuver and convince some

of the local Serb leaders that the deal was done before and it was accepted. He did

become the successor in the dialo�ue with his counterpart Isa Mustafa of Kosovo. Vučić con�nued to support the 19th of April A�reement but stressed out that everythin�

will be discussed in detail. He has said that A/USM is the only remainin� item from the

Brussels A�reement that we did not solve and he hoped that in the near future the two

par�es will come closer to an a�reement��.

��Poli�čka pla�orma za raz�ovore sa predstavnicima privremenih ins�tucija samouprave u Priš�ni,

h�p://www.predsednik.rs/lat/pres-centar/ves�/poli�cka-pla�orma-za-raz�ovore-sa-predstavnicima-privremenih-ins�tucija ��Tomislav Nikolić je prvi put jasno rekao da Zajednica srpskih opš�na na Kosovu neće moći da ima zakonodavnu i izvršnu

vlast. h�p://srb.�ondsk.ru/news/2013/03/14/tomislav-nikolic-ie-prvi-put-iasno-rekao-da-zaiednica-srpskih-ops�na-na-

kosovu-nece-moci-da-ima-zakonodavnu-i-izvrsnu-vlast..html ��SFRJ Socialist Federa�ve Republic o� Yu�oslavia��Vučić: Ne plaši� narod sporazumom;

h�p://www.b92.net/in�o/ves�/index.php?yyyy=2013�mm=05�dd=12�nav_cate�ory=640�nav_id=713043 �� Aleksandar Vučić: Pos��nut određeni napredak, nema do�ovora o ZSO; h�p://www.nspm.rs/hronika/aleksandar-vucic-

pos��nut-odredjeni-napredak-nema-do�ovora-o-zso-isa-musta�a-%E2%80%93-zajednica-srpskih-ops�na-kora-bi�-u-

okvirima-zakona-kosova.html?alphabet=l

17


The current Minister of Forei�n Affairs of Serbia and the Former Prime Minister who had

put the ini�als on the paper of the A�reement, Ivica Dačić told the Parliament of Serbia

that “the Brussels A�reement is an opportunity for Serbia to try and protect its state and

na�onal interests in a different way, and not celebrate our defeats��” he did ar�ue that

the Brussels A�reement is the most they could do at that sta�e. Accordin� to him, with

the A�reement it was made possible to con�nue towards European inte�ra�on that is, a

key interest for the Serb people. He believed that Serbia did mana�e to brin� the talks on

Kosovo in the “level of equals and while we have the consent of the President, we need

the approval of the Parliament��.” On several occasions, Minister Dačić has noted that

they (Serbia) are aware that Kosovo does not want the A/USM to turn into Republika

Srpska while Serbia does not want the A/USM to be an NGO. In the last address to the UN

SC Minister Dačić has said that “the Republic of Serbia, dedicated, consciously and within

the �me limits is fulfillin� all the obli�a�ons that came out of the A�reement. I express

my sa�sfac�on that even in the last report, the meanin� of the crea�on of the Union of

the Serb Majority Municipali�es is reco�nized since this represents the key issue for the

Republic of Serbia and its dedica�on to fully implement the Brussels A�reement��.”

The former Head of the Serb dele�a�on on the technical talks between Kosovo and

Serbia, a Member of the Parliament of Serbia and the vice President of the Democra�c

Party, Borko Stefanović, says that “the A/USM does not remind him of 'Republika Srpska'

althou�h there is a lot of fuzz in Kosovo about it. A/USM is a �ood thin� that has come out

of the Brussels A�reement and I support the idea��” he ar�ues that “the A/USM is an idea

that creates the possibility for the connec�on between municipali�es with Serb majority

in Kosovo, a structure that will deal with precisely dele�ated tasks, first and foremost

with preservin� the iden�ty, educa�on, culture, health care and some infrastructural

projects that could be ener�y althou�h it is not foreseen��.” He is aware that there are s�ll a number of disa�reements between Bel�rade and

Prish�na and that the talks will not be easy. With an elaborate tone, he explains the

differences between Republika Srpska and the Associa�on. “ Republika Srpska is a

crea�on of the cons�tu�onal condi�ons while A/USM is the crea�on of the Kosovo Law,

there is a clear dis�nc�on between the two.When the Dayton Bosnia was created, it was

composed of two en��es and the Bosnian Cons�tu�on.

�� : Prilika da razumno branimo interese; h�p://�oo.�l/n�JcKW��Ivica Dačić: Da nismo potpisali Briselski sporazum ne bismo otvorili pre�ovore sa EU; h�p://www.nspm.rs/hronika/ivica-

dacic-napredak-u-eu-je-poli�cko-pitanje-da-nismo-potpisali-briselski-sporazum-ne-bismo-otvorili-pre�ovore.html?alphabet=l �� Govor prvo� potpredsednika Vlade Srbije i ministra spoljnih poslova Ivice Dačića na sednici Saveta bezbednos� Ujedinjenih

nacija o radu UNMIK-a; h�p://www.m�a.�ov.rs/sr/index.php/o-ministarstvu/ministar/�ovori/15292-2015-05-26-15-41-

55?lan�=lat w�� Interview with Borko Ste�anovic��ibid

18


A/USM is a crea�on of the Brussels A�reement and the law that should be created in

Prish�na. Based on this, I do not think that there should be any hesita�on or

misunderstandin� that A/USM will be the nucleus of a future state within a state or that it

represents the be�innin� of the future division of Kosovo��” he believes that the crea�on

of the A/USM as a supra municipal structure, everybody will win. Serbia, Kosovo Serb and

Kosovo ci�zens and also poli�cians both in Serbia and Kosovo will win. What is more

important stresses Stefanović, the ci�zens who live there want to have a supra municipal

structure that will deal with health care security, educa�on, informa�on, infrastructure

and some other thin�s that in any way are part of the European Autonomist tradi�on. He

believes that it was the very Idea of the A/USM that helped �et the Kosovo Serbs to

par�cipate in the Kosovo Elec�ons. He believes that A/USM does not represent a

separa�st or irreden�st aspira�on.

On the ques�on whether he believes that the crea�on of the A/USM will help or hinder

the process of inte�ra�on of the Serb community in Kosovo he answers that Serbs are

already inte�rated. He is aware that the Cons�tu�on of Serbia represents an addi�onal

complica�on to the ma�er since accordin� to it, Kosovo is an autonomous province and

the local �overnance is already re�ulated. S�ll, he believes that the moment of chan�e of

the cons�tu�on will not be an anachronism with the whole process. We should reco�nize

that Kosovo exists, he adds. “Kosovo has its ins�tu�ons, where people live and where

they already have and brin� their new laws throu�h a democra�c procedure. Simply, we

do not need to reco�nize Kosovo but we need to reco�nize its existence and learn to

cohabitate with it��”

Aleksandar Senić, a member of the Parliament of Serbia from the Social Democra�c Party

says that the basic need for the crea�on of the A/USM is to improve services to the Serb

popula�on in Kosovo. He is aware that “the A/USM should be created by the Kosovo Law

and that perhaps some of them need to be chan�ed since today there is no le�al way to

create the medium layer of �overnance.

This is the first thin� that needs to happen so that this Union is not merely an NGO with

no execu�ve powers��.” He believes that A/USM should be Prish�na oriented since the

Bel�rade support for it is self-evident.

��ibid��ibid��Interview withAleksandar Senić

19


The Former Minister for Kosovo under the Kostunica �overnment, Slobodan Samardzić

sais that there was an idea about an asymmetrical system of local �overnance for Kosovo

Serb majority municipali�es which would have certain possibili�es of links between

them but also with other municipali�es of Kosovo. S�ll he believes that “the Brussels

a�reement was imposed on Serbia and that the �overnment has made a fatal mistake by

�ivin� up to the EU without anythin� in return��.” He did not want to comment a lot

neither for A/USM or the Brussels A�reement but he called it a “ro�en vehicle” that is not

bein� implemented. He does see the A/USM as an autonomy of the Serbs as a minority

within the Kosovo framework even thou�h, accordin� to him, in the Brussels A�reement

paper it does not have the elements of an autonomy but rather a sort of possible links

between municipali�es without addi�onal competencies that would define it as an

autonomy. Accordin� to him, if the A/USM would have Judicial and execu�ve powers,

than it would look like autonomy. With an opposi�on tone, he believes that with the

implementa�on of the A/USM the victor will be Kosovo as an independent country since

it will be able to present the Serb ques�on as solved while the Serb community there, will

have to live within the borders of that state and will have to act accordin�ly to its rules.

Vuk Drasković, former Deputy Prime Minister and Minister of Forei�n Affairs of Serbia

and Montene�ro thinks that “the Brussels A�reement has opened the window of hope

for the normaliza�on of 'all' rela�ons between Kosovo and Serbia��.” He told our

researcher that he even did not want to call these rela�ons between Pris�na and

Bel�rade but between Serbia and Kosovo. He believes that the A�reement should be

implemented to the last point.

He believes that the E/USM is a European solu�on to the similar situa�ons and not a new

state within a state. He does not believe that the A/USM is similar to Republika Srpska in

any instance but rather a union within the limits of the European Chart on Local Self

Government. He understands that the municipali�es in Kosovo have much more

competencies that those in Serbia but he does not think that anythin� is bein� overdone

with the A/USM. He even asked our researcher not to measure anythin� with what

Serbia has, since Serbia should not be a measure to anyone. He believes that the A/USM

main office should not be located in Mitrovica North but in Gračanica since in the

mytholo�ical and cultural aspect, all the serb churches and monasteries are located in

the southern part of Kosovo and not in the northern one.Sonja Biserko, the Director of

the Serb Helsinki Commi�ee ar�ues that Serbs are con�nuously tryin� to �ive a different

interpreta�on about the content and the competencies of the A/USM.

��Interview with Slobodan Samardzić��Interview with Vuk Drasković

20


She is also aware that the A/USM should be created accordin� to the Kosovo law. She

says that it is obvious that “a certain part of the Serb poli�cal elite want to create A/USM

as Republika Srpska. But I believe that it would be bad for everyone. It would be bad for

Kosovo and for the Serb community, it would be bad for Kosovo since it would destroy its

func�onality as Republika Srpska destroyed the func�onality of Bosnia and

Herce�ovina��.” She is hopeful and believes that the European Union is not �oin� to back

from the idea that the A/USM should be created under the Kosovo law and she thinks

this is �ood. She also believes that Serbia is for�e�n� that there are minori�es in Serbia

as well and that they mi�ht raise the issue about anythin� it is done in Kosovo one day.

Bosniaks in Sandzak, Albanians in the South, Hun�arians in the north or even some other

minori�es mi�ht ask for a union of municipali�es one day. She believes that the crea�on

of the A/USM will narrow ethnic division that exists today. She believes that the best part

of fault for this lies with poli�cians who do not consider Kosovo Serbs as individuals but

as a collec�ve . She finds it very important that Kosovo Serbs should decide for

themselves and for their future, despite from the support that they are and will �et from

Bel�rade. She thinks that the A/USM will be there for the ci�zens of those municipali�es

and that the connec�on between Kosovo Serbs and Serbia will remain forever and that

no one is dispu�n� it. S�ll, the Kosovo Serbs should understand and accept Prish�na as

their Capital City and not Bel�rade. Accordin� to her, Bel�rade has always manipulated

them for poli�cal reasons.

The forei�n policy analyst of “Poli�ka” newspaper in Bel�rade, Bosko Jaksić believes that

the Brussels A�reement is the main push for Serbia's inte�ra�on move towards EU and

as a solu�on to the Kosovo problem and re�ional coopera�on. This A�reement, he

ar�ues, “is the best example that Serbia has moved away from the rhetoric of the “Serb

Territories' to ac�vely protec�n� the interests of the Serb community in Kosovo and

Metohija. This is why they were also encoura�ed to par�cipate in the elec�ons��.”Jaksić believes that the crea�on of the A/USM is lo�ical also because of the s�ll deep

distrust between Serbs and Albanians in Kosovo. This Associa�on will �ive the Serbs

enou�h assurance and will also prevent the par��on of Kosovo. Serbs are afraid of

discrimina�on while Albanians are afraid of the destruc�on of the func�onality of the

state. He believes that the dismantlin� of the parallel structures will �o hand in hand with

the crea�on of the A/USM. . He foresees that the road to the full implementa�on of the

A�reement will be lon� and difficult, primarily because of different expecta�ons of Serbs

and Albanians. S�ll he believes that there should be some results un�l of the end of 2015

since EU is already showin� doses of nervousness because of the lack of pro�ress in the

implementa�on of the A�reement. He does not believe that the win- win situa�on is

possible but s�ll does not think that the lo�ic of winners and losers is the correct one.

��Interview with Sonja Biserko��Interview with Bosko Jaksić

21


Althou�h he understands that there are people in Bel�rade that would want to see

A/USM as Republika Srpska, and that would not want to see a referendum in RS for the

secession from Bosnia and possibly the same scenario for the A/USM in Kosovo, he does

not think that that is or will be the case at all. He believes that that is the scenario that the

EU would not allow and that also the Bel�rade authori�es are opposed to it, as is evident

with their con�nued and increasin� reluctance to cooperate with Dodik.

The Albanian member of the Serb Na�onal Parliament, Shaip Kamberi considers that the

form of poli�cal or�aniza�on that is offered to the Kosovo Serbs is of the hi�hest

standards of protec�on and promo�on of minority ri�hts in Europe��. He believes that

the A/USM poses a serious dan�er for the disinte�ra�on of Kosovo, because of the fact

that Kosovo Serbs do not want to live in the State of Kosovo and also because Bel�rade

wants to create the exterritorial situa�on in the �round. S�ll he believes that the Kosovo

poli�cians should insist for the reciprocity for all the arran�ements that are made for

Kosovo Serbs, meanin� that they should ask for the same ri�hts for Albanians in the

south of Serbia.

��Interview with Shaip Kamberi

22


VI. THE POSITION ON THE ASSOCIATION international community

viewpoint

The posi�on of the Interna�onal Community has been clear on the crea�on of the

A/USM this far. That is that it should be created based on the Kosovo Law. S�ll no one is

explainin� what 'Kosovo Law' really means. Whether based on the actual Law on Local

Self Government or a new law. The Special Representa�ve of the EU and the Head of the

EU Office in Kosovo, Samuel Zbo�ar has stated that the Associa�on of the Serb Majority

Municipali�es will be created based on the Kosovo laws��.

The US Ambasador to Kosovo, Tracy Ann Jacobson has stated in an interview that “the

crea�on of the Associa�on of the Municipali�es coupled with �ood elec�ons that were

held are crucial elements of the Kosovo path towards European Union as well as Serbia

path towards the EU��.”The former Bri�sh Ambassador to Kosovo, Ian Cliff has stated that it should be seen what

the competencies of the Associa�on will be but “it is clear that is not �oin� to be an NGO

since the local �overnment is �overnance and it cannot be considered

non�overnmental. Off course there are many worries in Prish�na in the other side, if this

Associa�on will have too much competencies than it mi�ht turn into Republika Srpska,

but I think this is exa��erated because the cons�tu�onal framework is different in

Kosovo. No one is interested in a state within a state. I believe that this Associa�on is a

posi�ve thin� for Kosovo because parallel to that the dismantlin� of the parallel

structures will happen as well��.” The former Ambassador of Germany to Kosovo, Peter Blomayer has said in an interview

that “the character of the Associa�on of the Serb Municipali�es is defined by the First

A�reement Governin� the Principles on the Normaliza�on of Rela�ons of the 19th of

April. We are talkin� here about the Associa�on with clear aims within the framework of

which, the municipali�es will be able to exercise their powers in the fields like the

economic development, health care, educa�on or spa�al development. This happens

based on the statute that is bein� actually dra�ed. I do not believe that the term NGO is

adequate for the Associa�on but also there will be no independent third layer of

�overnance nor a new Republika Srpska. It will be an instrument of coopera�on between

municipali�es within the field of their competencies��.”

��Zhbo�ar: Asociacioni serb I komunave sipas li�jeve te Kosoves; h�p://koha.net/?id=27�I=55997��Ambassador Jacobson's Interview,

h�p://pris�na.usembassy.�ov/amb_jacobsons_interview_with_radio_duka�jini_dec_3_2013.html

h�p://pris�na.usembassy.�ov/amb_jacobsons_interview_with_radio_duka�jini_dec_3_2013.html (Qasur me 07.06.2015)��Cli�: the EU is workin� �or Kosovo to �et as many reco�ni�ons; h�p://www.rtklive.com/?id=10�r=15534 ��Ambasadori �jerman Dr. Peter Blomeyer intervistë për të përditshmen Kosova Sot.

h�p://www.pris�na.diplo.de/contentblob/4115948/Daten/3866700/20131212dldinterviewbotscha�erblomeyerkosovasot.p

d�

23


While the German Ambassador to Serbia Heinz Wilhelm has stated that “it would be

�ood that the Serb Government reaches the A�reement on the Associa�on of the Serb

Municipali�es in Kosovo since this will allow for the openin� of the chapters��” that will

prepare Serbia to Join the EU.

The Special Representa�ve of the Secretary General and the Head of UNMIK, Farid Zarif

has also commented the Brussels A�reement, sta�n� that “the first A�reement on the

Principles Governin� the Normaliza�on of the Rela�ons is a �reat achievement and a

crucial step forward for both, Bel�rade and Prish�na��.” While in the last address before

the UN Security Council, Zarif has said that it is re�re�ul that no pro�ress is bein�

achieved in establishin� the A/USM while callin� for a stron�er leadership from Bel�rade

and Prish�na��.

��Wilhelm: Për krijimin e Asociacionit të komunave serbe vendos Kosova; h�p://koha.mk/�lobi/36318-wilhelm-per-krijimin-e-

asociacionit-te-komunave-serbe-vendos-kosova.html ��Special Representa�ve, Security Council Members Hail 19 April A�reement as 'Decisive' Step towards Normalizin� Serbia-

Kosovo Rela�ons; h�p://www.un.or�/press/en/2013/sc11033.doc.htm ��Statement by Farid Zari�, Special Representa�ve o� the Secretary-General �or Kosovo, to the Security Council, 26 May, 2015;

h�p://www.unmikonline.or�/PR/26_May_2015-SRSG__Presenta�on_to_the_Security_Council.pd�

24


VII. COMPARING DIFFERENT ASSOCIATIONS IN THE REGION

The Republic of Kosovo

The Kosovo Associa�on of Municipali�es (AKK) was created in 2001 a�er the first

post-war democra�c local elec�ons in Kosovo. The crea�on of the Associa�on was based

on the Ar�cle 10 of the European Charter on the local self-�overnment of the Council of

Europe (the ri�ht on associa�on). AKK is a non-profit or�aniza�on, it is a le�al person that

represents the �eneral interests of its members, local authori�es. The members of the

Associa�on are the local authori�es of Kosovo and they are accepted in the associa�on

by the Assembly of the Associa�on upon the decision of the Municipal Council. The AKK

en�a�es so that Kosovo implements the provisions of the European Charter on Local Self

Government. The mission of the AKK is that throu�h the joint effort with the

municipali�es to improve the local �overnance in Kosovo and make it efficient,

sustainable and democra�c and also be able to deliver hi�h quality services to its

members.

The Republic of Montene�ro

The Union of the Municipali�es of Montene�ro is a na�onal associa�on of local

communi�es. The mission of the Union of the Municipali�es is to offer services, and

represent its members as well as to facilitate coopera�on between the members and the

Union with state authori�es as well as the associa�ons and unions of other countries;

thus becomin� the real support for decentralized and democra�c local �overnment.

Accordin� to its statute, local units are municipali�es, ci�es and the capital city. The

Union of Municipali�es is established voluntarily under the principle of equality of local

units, mutual respect and ethnic equality.

The Republic of Serbia

In Serbia, local authori�es are associated in the Permanent Con�ress of Ci�es and

Municipali�es. It is also called the na�onal Alliance of Local Authori�es of the Republic of

Serbia. Ci�es and municipali�es join the Con�ress voluntarily with the aim of improvin�

local �overnance and establishin� connec�ons for advancin� mutual interests. The

mission of the Con�ress is to represent the interests of its members, offer hi�h quality

services and support the development and advancement of the local self-�overnment

throu�h joint en�a�ement of its members. Municipali�es with majority Bosniak,

Albanian, Hun�arian or other ethnic minority popula�on par�cipate in the Con�ress

without any troubles. The func�onin� of the Con�ress is fixed and there is no request for

addi�onal competencies, be it for itself or for municipali�es and ci�es.

25


Bosnia and Herze�ovina

Founded under Dayton Accords of 1995, Bosnia and Herze�ovina is divided into

two En��es and today each of them has a separate associa�on of municipali�es. The

Federa�on of Bosnia and Herze�ovina has its 'Alliance of Municipali�es and Ci�es of the

Federa�on of Bosnia and Herze�ovina' while Republika Srpska has its 'Alliance of

Municipali�es and Ci�es of Republika Srpska'.

The Alliance of Municipali�es and Ci�es of the Federa�on…, is an independent and

voluntary or�aniza�on of municipali�es and ci�es of the Federa�on. It is established in

order to develop the local self-�overnment and to promote and protect mutual interests

of its members. The alliance was established as a non-profit or�aniza�on of

municipali�es and ci�es of the Federa�on of Bosnia and Herze�ovina in the inau�ural

session on the 29th of May 2002 in Mostar. 54 members adopted the Statute of the

Alliance. This Alliance is also seen as the le�al successor of the Union of the

Municipali�es and Ci�es of the Socialist Republic of Bosnia and Herze�ovina established

in 1972. Today all local units of the Federa�on are members of the Alliance.

The Alliance of the Municipali�es and Ci�es of Republika Srpska was established in Brčko

in 1998. This Alliance is a 'na�onal associa�on of local �overnments, it represents the

interests of its members in front of the central �overnment and it offers services to its

members on the field of local self-�overnment.

It is important to note here that in 2013, Serb majority municipali�es of the Canton Livno

of the Federa�on of Bosnia and Herze�ovina did establish their Union. The municipali�es

of Drvar, Bosansko Grahovo and Glamoč assemble once a month and they have started

the talks with the municipality of Petrovac from the Canton of Una-Sana so that they

would also join the union. The Chairman of the Union of serb Municipali�es, Slavisa

Mihajlović has recently stated that “the posi�on of the Serbs in the Federa�on of Bosnia

and Herze�ovina and the problems they face are a ma�er of the �eneral interest and all

the Serb poli�cal corpus should have a standin� on this, meanin� also for the Canton of

Livno.”

26


CONCLUSIONS

The key component of the Brussels A�reement that has yet to be implemented is the

establishment of the Associa�on/Union of the Serb Majority Municipali�es of Kosovo.

This mechanism represents the 'best' example of the different ways the par�es are

interpre�n� and approachin� the Brussels process. This report has analysed and studied

in detail judicial and poli�cal se�ments as well as the posi�ons of different actors on the

crea�on of the A/USM

Both Cons�tu�onal Courts, in Kosovo and Serbia have rejected the interpreta�on of the

cons�tu�onality of the A�reement with their respec�ve Cons�tu�ons based on the

same ar�uments, the lack of jurisdic�on of the Cons�tu�onal Courts over interna�onal

poli�cal a�reements. Even accordin� to both courts, here we are not dealin� with a le�al

issue but with a poli�cal one.

It can be concluded here that despite the statements of most poli�cal actors that the

establishment of A/USM will be in conformity with the cons�tu�on and the law of

Kosovo, if the prevailin� poli�cal concept for the A/USM is to be implemented than a new

law will be needed, the law that will most probably chan�e the le�al framework in

Kosovo. It is evident that the Kosovo has ra�fied the A�reement while Serbia didn't. This

also creates a difficult le�al and poli�cal posi�on for Kosovo.

The report brin�s different viewpoints and different approaches as to how should the

A/USM be established. We have once a�ain brou�ht to li�ht the proposal of the

President of Serbia which we think is important to note since it does clarify more the

posi�on and the thinkin� of the official Serbia on the ma�er.

We have carefully read and studied the posi�ons of different interna�onal actors,

involved with the Brussels A�reement process especially on the establishment of the

A/USM. We have noted that the interna�onal community, especially the EU and the

United States have fully supported the establishment of the A/USM no�n� very carefully

that it should be done based on the Kosovo law.

It was also noted that in the paper of the Brussels A�reement the no�on 'based on the

Kosovo Law' was also used but without specifyin� which law, the Law on Local Self

Government, or another one? This fact and the fact that the Cons�tu�on of Kosovo was

not men�oned make us believe that a new law will be requested for the establishment of

the A/USM.

27


We have found that there are different ways as to how the civil society in Kosovo

and Serbia understands the A/USM. Most of the representa�ves of the civil society

in Serbia unveil that there are elements of the �overnment in Serbia who would

like to see a new Serb En�ty Created in Kosovo while no�n� that a solu�on as such

would not be �ood for anyone. All of them see the crea�on of the A/USM as a

posi�ve step forward for everybody.

In Kosovo thou�h, the analysts and civil society representa�ves, in most cases, see

the establishment of the A/USM purely as a way of crea�n� a new Serb en�ty. They

see it as a dan�erous process and the one that would lead to the distor�on of the

func�onality of the state and possibly par��on of Kosovo.

It is worth no�n� thou�h that in all direct interviews as well as in the extracts of

speeches and media presenta�ons, almost all Serb officials as well as media and

civil society representa�ves have avoided comparin� the A/USM with Republika

Srpska both as a narra�ve and as a discourse. We believe that this shows that

everybody is aware how unpopular the en�ty concept is both locally and

interna�onally. Everybody is aware that Republika Srpska has made Bosnia not

func�onal. This however does not mean that Serbia would not want to create a

new Serb en�ty in Kosovo.

We have noted that there is a number of Serb poli�cians and civil society

representa�ves who would be willin� to let Kosovo Serbs '�o with Kosovo'

provided that there will be stron� �uarantees for their security preserva�on of the

iden�ty abnd links with Serbia.

This report cannot conclude how much Serbia is interested to hold the control over

Kosovo Serbs. This was not the aim of the report. However, there are clear

differences amon�st Serb representa�ves on the issue.

Another part of the puzzle that the report brin�s is that Serbia itself, despite the

fact that it is insis�n� for more powers and competencies for the A/USM, in a

stran�e way is an obstacle to its establishment. First of all, there is a clear le�al

contradic�on between the official Serb requests and their cons�tu�onal

framework but even more important, we believe that the very a��ressive insis�n�

of Serbia for much more competencies for the A/USM than for municipali�es

raises more doubts in Kosovo over the real aims of Serbia.

28


Despite all the assurances and �uarantees that are �iven by Serbia to the

interna�onal community and despite the current official posi�on, it is to be

expected that in the future Serbia will be seriously tempted to assert more

influence on the A/USM either for internal poli�cal �ains or for other reasons, one

of them bein� 'permanent condi�onin� of Kosovo over any issue'.

Havin� in mind everythin� that was said this far, we can conclude that the A/USM,

in the Kosovo version, has more poli�cal character and less le�al and execu�ve.

S�ll with the 'New Law', this character mi�ht chan�e and the A/USM mi�ht �et

execu�ve powers. Any poli�cal body that has execu�ve powers will certainly need

some sort of the le�isla�ve body. This seems to be the aim of one party and the

problem of the other.

29


RECOMMENDATIONS

Star�n� from the understandin� that the 19th of April A�reement needs to be respected

and from the understandin� of the situa�on on the �round, our recommenda�ons

would be:

» The Associa�on/Union of the Serb Majority Municipali�es of Kosovo should be

established based on the Kosovo Cons�tu�on and Law without chan�in� the current

le�al and cons�tu�onal framework.

» A/USM should not have competencies that are not provided by the actual law on

Local Self Government in Kosovo.» A/USM should have its Statute, as the hi�hest Act and which would be adopted in

the Assembly of the A/USM. The statute should clearly state that the A/USM will respect

all different communi�es livin� in the municipali�es that establish A/USM.» The A/USM can have its Fla� and other symbols that respect all the local

communi�es livin� in the municipali�es that establish it. » The A/USM should have its Council. The Mayors of the member municipali�es will

chair the A/USM on the rota�on bases.» The A/USM should have its Assembly. The elected Municipal Councillors from the

member municipali�es should be the members of the A/USM Assembly.» The A/USM should have its main office in Gračanica. This should be the case

because of the fact that there are more Kosovo Serbs livin� in the south that in the North,

but also because of the proximity to the diploma�c missions and other ins�tu�ons.» The A/USM should be able to cooperate with the exis�n� Associa�on of the

Kosovo Municipali�es as well as with the Permanent Conference of the Municipali�es

and the Ci�es of Serbia.» The A/USM should be opened for other municipali�es that would want to join it.» The A/USM should have competencies on the cultural and reli�ious ma�ers as a

unique character.» The A/USM should coordinate and help the member municipali�es in

implemen�n� their projects on urbanism, municipal project administra�on, economic

development, health care, and help them fulfill the needs of their ci�zens while

respec�n� the subsidiary principle.

» The A/USM in coordina�on with the Ministry for the Returns, should help in the

inte�ra�on of all representa�ves of the communi�es that have le� their homes, in

all the municipali�es members of the A/USM

30


REFERENCES

Ÿ

Ÿ First A�reement of Principles Governin� the Normaliza�on of Rela�ons

;h�p://www.rts.rs/upload/storyBoxFileData/2013/04/20/3224318/Ori�inalni%20te

kst%20Predlo�a%20sporazuma.pdfŸ Law on Local Self Government (Law Nr. 03/L-40)

h�p://www.kuvendikosoves.or�/common/docs/li�jet/2008_03-L040_al.pdf, - Ÿ The Law on the Ra�fica�on of the First Interna�onal A�reement on the

Principles Governin� the Normaliza�on of the Rela�ons Between the Republic of

Kosovo and the Republic of Serbia Law Nr. 04/L-199Ÿ Ustav Republike Srbije, 2. Autonomne Pokrajine, Clan 182, faqe 90. Sluzbeni

Glasnik,2007, Beo�radŸ The Cons�tu�onal Court of Kosovo, Rulin� on the Case Nr. 95KO/13,

h�p://www.�jk-ks.or�/repository/docs/�jkk_ko_95_13_shq.pdf Ÿ Ustavni Sud Republike Srbije, Zaključak, Br. IUo-247/2013,

h�p://sl�lasnik.info/sr/13-02-02-2015/27308-zakljucak-ustavno�-suda-broj-iuo-

247-2013-i-izdvojena-misljenja-sudija.html Ÿ Jahja�a: Me marrëveshjen nuk humb askush; h�p://www.president-

ks�ov.net/?pa�e=1,10,2867#.VX�zpv-qqkp Ÿ Asociacioni i Komunave Serbe vetëm, sipas Kushtetutës së Kosovës;

h�p://www.tele�rafi.com/lajme/asociacioni-i-komunave-serbe-vetem-sipas-

kushtetutes-se-kosoves-2-38571.html Ÿ The presenta�on of the Prime Minister of Kosovo, Hashim Thaçi in the session

of the UN Security Council h�p://www.kryeministri-ks.net/?pa�e=1,9,4001 Ÿ The Associa�on of the Serb Municipali�es is not a republic ;

h�p://www.evropaelire.or�/content/ar�cle/25189881.html Ÿ The Presenta�on of the Prime Minister Isa Mustafa in the Kosovo Assembly

h�p://www.kryeministri-ks.net/?pa�e=1,9,4729 (Qasur me 29.05.2015)Ÿ Interview with Riza Smaka, Profesor of the Cons�tu�onal Law, 09.06.2015Ÿ Interview with Nexhmedin Spahiu, poli�cian and University Professor,

24.05.2015Ÿ Interview with A�im Bah�ri, Mayor of Mitrovica South, 22.05.2015Ÿ Interview with Naim Rashi�, Interna�onal Crisis Group, 03.06.2015Ÿ Interview with Sadri Fera�, Member of Parliament of Kosovo 11.06.2015Ÿ Poli�čka pla�orma za raz�ovore sa predstavnicima privremenih ins�tucija

samouprave u Priš�ni, h�p://www.predsednik.rs/lat/pres-centar/ves�/poli�cka-

pla�orma-za-raz�ovore-sa-predstavnicima-privremenih-ins�tucija

31


Ÿ Fjala e Kryeministrit të Republikës së Kosovës, Isa Mustafa, në Kuvendin e Kosovës;

h�p://www.kryeministri-ks.net/?pa�e=1,9,4729 (Qasur me 29.05.2015)

Ÿ Intervistë me Riza Smaka, profesor i së drejtës kushtetuese, 09.06.2015Ÿ Intervistë me Nexhmedin Spahiu, poli�kan dhe profesor universitar, 24.05.2015Ÿ Intervistë me A�im Bah�ri, Kryetar i Komunës së Mitrovicës Ju�ore, 22.05.2015Ÿ Intervistë me Naim Rashi�, Grupi Ndërkombëtar i Krizave, 03.06.2015Ÿ Intervistë me Sadri Fera�, deputet 11.06.2015

Ÿ Poli�čka pla�orma za raz�ovore sa predstavnicima privremenih ins�tucija

samouprave u Priš�ni, h�p://www.predsednik.rs/lat/pres-centar/ves�/poli�cka-

pla�orma-za-raz�ovore-sa-predstavnicima-privremenih-ins�tucija (Qasur me

24.05.2015)

Ÿ Tomislav Nikolić je prvi put jasno rekao da Zajednica srpskih opš�na na Kosovu neće

moći da ima zakonodavnu i izvršnu vlast.

h�p://srb.fondsk.ru/news/2013/03/14/tomislav-nikolic-ie-prvi-put-iasno-rekao-da-

zaiednica-srpskih-ops�na-na-kosovu-nece-moci-da-ima-zakonodavnu-i-izvrsnu-

vlast..html (Qasur me 23.05.2015)

Ÿ Vučić: Ne plaši� narod sporazumom;

h�p://www.b92.net/info/ves�/index.php?yyyy=2013�mm=05�dd=12�nav_cat

e�ory=640�nav_id=713043 (Qasur me 04.06.2015)

Ÿ Aleksandar Vučić: Pos��nut određeni napredak, nema do�ovora o ZSO;

h�p://www.nspm.rs/hronika/aleksandar-vucic-pos��nut-odredjeni-napredak-

nema-do�ovora-o-zso-isa-mustafa-%E2%80%93-zajednica-srpskih-ops�na-kora-

bi�-u-okvirima-zakona-kosova.html?alphabet=l (Qasur me 09.06.2015)

Ÿ Parlament o briselskom do�ovoru;

h�p://www.rts.rs/pa�e/stories/sr/story/9/Poli�ka/1312904/Parlament+o+briselsk

om+do�ovoru.html (Qasur me 21.05.2015)

Ÿ Dačić: Prilika da razumno branimo interese; h�p://�oo.�l/n9JcKË

Ÿ Ivica Dačić: Da nismo potpisali Briselski sporazum ne bismo otvorili pre�ovore sa

EU; h�p://www.nspm.rs/hronika/ivica-dacic-napredak-u-eu-je-poli�cko-pitanje-da-

nismo-potpisali-briselski-sporazum-ne-bismo-otvorili-pre�ovore.html?alphabet=l

(Qasur me 01.06.2015)

32


Ÿ

Ÿ · Vučić: Ne plaši� narod sporazumom;

h�p://www.b92.net/info/ves�/index.php?yyyy=2013�mm=05�dd=12�nav_cat

e�ory=640�nav_id=713043 Ÿ · Aleksandar Vučić: Pos��nut određeni napredak, nema do�ovora o ZSO;

h�p://www.nspm.rs/hronika/aleksandar-vucic-pos��nut-odredjeni-napredak-

nema-do�ovora-o-zso-isa-mustafa-%E2%80%93-zajednica-srpskih-ops�na-kora-

bi�-u-okvirima-zakona-kosova.html?alphabet=lŸ · Parlament o briselskom do�ovoru;

h�p://www.rts.rs/pa�e/stories/sr/story/9/Poli�ka/1312904/Parlament+o+briselsk

om+do�ovoru.html Ÿ · Dačić: Prilika da razumno branimo interese; h�p://�oo.�l/n9JcKWŸ · Ivica Dačić: Da nismo potpisali Briselski sporazum ne bismo otvorili pre�ovore

sa EU; h�p://www.nspm.rs/hronika/ivica-dacic-napredak-u-eu-je-poli�cko-pitanje-

da-nismo-potpisali-briselski-sporazum-ne-bismo-otvorili-

pre�ovore.html?alphabet=l Ÿ · Govor prvo� potpredsednika Vlade Srbije i ministra spoljnih poslova Ivice

Dačića na sednici Saveta bezbednos� Ujedinjenih nacija o radu UNMIK-a;

h�p://www.mfa.�ov.rs/sr/index.php/o-ministarstvu/ministar/�ovori/15292-2015-

05-26-15-41-55?lan�=lat Ÿ · Interview with Borko Stefanoviq, Member of Parliament of Serbia; 26.05.2015Ÿ · Interview with Aleksandar Senić, Member of Parliament of Serbia, 26.05.2015Ÿ · Interview with Slobodan Samardzić, Former Minister for Kosovo in the

Government of Serbia, 27.05.2015Ÿ · Interview with Vuk Drasković, Poli�cian 28.05.2016Ÿ · Interview with Sonja Biserko, Serb Helsinki Comee�ee, 25.05.2015Ÿ · Interview with Bosko Jaksić, daily “Poli�ka” Beo�rad, 29.05.2015Ÿ · Interview with Shaip Kamberi, member of Parliament of Serbia, 24.05.2015Ÿ · Zhbo�ar: Asociacioni serb i komunave sipas li�jeve të Kosovës;

h�p://koha.net/?id=27�l=55997 Ÿ · Ambassador Jacobson's Interview,

h�p://pris�na.usembassy.�ov/amb_jacobsons_interview_with_radio_duka�jini_de

c_3_2013.html Ÿ

Ÿ · Cliff: BE-ja po punon që Kosova të fitojë sa më shumë njohje;

h�p://www.rtklive.com/?id=10�r=15534 Ÿ · Ambassador Dr. Peter Blomeyer of Germany interview for the Kosovo daily

“Kosova Sot”

h�p://.pris�na.diplo.de/contentblob/4115948/Daten/3866700/20131212dldinterv

iewbotscha�erblomeyerkosovasot.pdf (Qasur me 02.05.2015)

33


Ÿ Wilhelm: Për krijimin e Asociacionit të komunave serbe vendos Kosova;

h�p://koha.mk/�lobi/36318-wilhelm-per-krijimin-e-asociacionit-te-komunave-

serbe-vendos-kosova.html

Ÿ Special Representa�ve, Security Council Members Hail 19 April A�reement as

'Decisive' Step towards Normalizin� Serbia-Kosovo Rela�ons;

h�p://www.un.or�/press/en/2013/sc11033.doc.htm

Ÿ Statement by Farid Zarif, Special Representa�ve of the Secretary-General for

Kosovo, to the Security Council, 26 May, 2015;

h�p://www.unmikonline.or�/PR/26_May_2015-

SRSG__Presenta�on_to_the_Security_Council.pdf

Ÿ Formiran savez srpskih opš�na u zapadnom delu Federacije BiH;

h�p://www.�deinves�ra�.com/ostale-teme-124/poli�ka-i-drustvo/re�ion/12200-

formiran-savez-srpskih-ops�na-u-zapadnom-delu-federacije-bih

Ÿ Savez Srpskih Opš�na; h�p://�oo.�l/BHeupv

Ÿ Union of Municipali�es of Montene�ro, h�p://www.uom.co.me/

Ÿ Permanent Conference of the Ci�es and the Municipali�es of Serbia

h�p://www.sk�o.or�/

Ÿ The Alliance of the Ci�es and the Municipali�es of the Federa�on of Bosnia and

Herze�ovina h�p://www.so��ih.ba/

Ÿ The Alliance of the Ci�es and the Municipali�es of Republika Srpska,

h�p://www.alvrs.com/v1/

Ÿ The Associa�on of the Municipali�es of Kosovo, h�p://komunat-ks.net/

34


NOTES

35


36


37


Kosovo Local Government Ins�tute

Address: Fehmi Agani 23/4, 10000 Prish�në, Republika e Kosovës

E-mail: [email protected]

Mob: +377 (0) 44 606 983

Web : www.klgi-ks.com

asociacioni klgi anglishtpashko vasa str. 7 (pejton place) 10000 prishtina tel: +381 38 221 108 +381...

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