The danger of ambiguity

Since the agreement on establishing the Association/Community of Serb-majority Municipalities (A/CSM) was reached, a highly contradictory debate has continued to unfold between and within both countries among political, institutional and civil society actors. In this respect I consider it fitting to offer this debate a contribution from my own perspective.

First I should clarify that the A/CSM will be framed similarly to the Association of Kosovo Municipalities, except that the former is recognised as having a special character, obliging the Kosovo government to adopt a directly applicable decree which will be reviewed by the Constitutional Court. So, as the agreement states, the Association/Community will be a legal entity defined by its own statute, with its rights and obligations expected to be set out in the statute. To put it plainly, if ambiguity is left here, this could be the core of the problems. Likewise, by adding the word Community to the name Association, the aim is to make a distinction in purpose, more precisely in the institutional structuring of the Serb ethnic community. Bearing these elements in mind, the discussion as to whether or not the A/CSM is an NGO misses the essence of the debate.

As regards formal structure, it should be stressed that the A/CSM does not break the two-tier level of governance, but in one form or another it is an intermediate “supra-municipal” structure. So, although the agreement explicitly contains no provision or point on executive competences, the fourth point of the agreement, which describes functions and public services, is a ‘play’ on words, since in this point executive competences have been ‘smuggled in’ through the expression ‘provision of functions and public services’, which to some extent amounts to the same thing.

The agreement also envisages an administration that will operate on the basis of the Law on Labour and the Law on the Civil Service, without their competences, institutional position or the structure itself being defined. In this respect, in the broad sense civil servants are part of the executive of the state, subject to legal principles and binding rules that derive from their specific placement in the hierarchical structure of the state. If the A/CSM administration operates within the civil service, then in one form it is recognised as having the right to an administrative function, which in this case belongs to executive power.

With this agreement the A/CSM in particular is given the oversight of some very important fields such as: education, primary and secondary healthcare, social issues, and urban and rural planning. Besides this, the A/CSM is intended to be the ‘umbrella’ of the Serb-majority municipalities, serving as a bridge of communication with the central institutions of Kosovo and those of Serbia in terms of policy, decision-making and financing. So this mechanism, through the political power given to it by the elected officials, in this case the mayors and councillors of the participating municipalities, could become the main political and decision-making institution for Serbs.

Despite all this, it should be stressed that de jure the Association does not Bosnianise Kosovo, because Republika Srpska is a product of constitutional arrangement, whereas the A/CSM is a product of Kosovo law, and the two are distinct. When Dayton Bosnia was created, it was founded on the model of two entities and the Bosnian Constitution. But the danger here arises from ambiguity and imprecision regarding the precise definition of competences and responsibilities between the Association and the Municipalities. So, with the establishment of the Association, the biggest task that remains is to clarify meticulously the functional and administrative aspects and to clarify precisely the competences of the municipalities and of the association.

Given the ambiguity of the agreement (since the first one in 2013), the parameters for a possible disruption of the system of governance certainly exist. Drafting the Statute will be a very complicated process with heightened tensions. The representatives of the Serb-majority Municipalities are already celebrating the agreement, believing that it creates the conditions for autonomy for them. And they will set out with this aim. However careful we are during the drafting of the Statute, unfortunately our delegation did not notice, or did not have the power to neutralise, the most problematic provision of the agreement: the possibility for the association to amend and change the Statute immediately after its first approval. Here we must be vigilant because, as I stressed earlier, the greatest danger comes from the drafting of the statute, since that is when the functioning, power and cementing of a second authority in Kosovo are regulated.