Is the term “de facto recognition” a more significant problem than mutual recognition?

In a joint statement of the president of France, Emmanuel Macron, the Chancellor of Germany, Olaf Scholz, and the Prime Minister of Italy, Giorgia Meloni, released after individual meetings with the Prime Minister of Kosovo, Albin Kurti and President of Serbia, Aleksandar Vučić, there was a request that Serbia delivers a de facto recognition. [1] Three days later, while visiting Pristina, the President of the European Commission, Ursula von der Leyen, has repeated the request of European leaders, using the same construct. [2] Such steps took the public by surprise, particularly in Serbia. However, the question arises as to why the reaction of the Serbian public was so tumultuous, keeping in mind that certain officials/institutions had already used the seemingly more powerful term “mutual recognition.”[3][4][5]

In particular, there are three basic differences when it comes to the use of aforementioned terms. First, the difference is in the stakeholder which uses the term. To that end, the construct “mutual recognition” was so far used exclusively by officials of states which had recognized Kosovo, while in the context of the European Union, this was done only by its Parliament, an institution with a traditionally “more liberal” approach in regards to this issue, but others, too. Although a similar approach would be expected from the European Commission as a supranational body, the perception of the position of the chairperson as the President of the Union as a whole, has caused the Commission itself to take a quite a bit more reserved/diplomatic stance on issues where there is no unity within the organization. Therefore, although the introduction of the term “de facto recognition” into the discourse of the Belgrade-Pristina dialogue was surprising, the decision of the President of the European Commission to use the said construct has additionally confused the public.

The second matter is tied to the moment in which the term was used. In particular, as was emphasized by the President of the European Commission in her address in Pristina, de facto recognition in fact means “implementation of the Ohrid Agreement, which foresees various steps, which include, for instance, recognition of documents and institutions by Serbia.”[6]

However, after the said Annex to the Agreement of the Path to Normalization was accepted by the representatives of Belgrade and Pristina in Ohrid on March 18 this year, no one, except for the officials of the government of Kosovo, has referred to the said document within the context of de facto recognition. If we assume that the statements of the President of the Commission are correct and that there are indeed no new incorporated provisions, the sharp reaction of the public partly came after a change in the discourse, seemingly caused by nothing.

The third, and last difference is in the legal and logical sense. Namely, in the sense in which it was used earlier, most often mentioned alongside with pointing out the need to achieve a “comprehensive legally-binding agreement” between Serbia and Kosovo, the term “mutual recognition” means de jure recognition of the two sides. The said construct was senseless to many, emphasizing how Serbia, as an already recognized state and member of the United Nations, has no need to be recognized by Kosovo. However, should there be a de jure recognition of Kosovo by Serbia, the borders of Serbia would be different than those within which it is currently recognized. At the same time, taking into account that Kosovo perceives Serbia exclusively within borders without the “AP of Kosovo and Metohija,” it is clear that, for practical reasons, a formal recognition of new borders by the government in Pristina should necessarily happen. Regardless, when it comes to a de facto recognition, the matter is quite a bit less clear. Namely, according to international law, a de facto recognition is a recognition which is temporary in nature, i.e. the state that de facto recognizes another state is sending a signal that there is a possibility the recognition be “withdrawn” under certain circumstances (or lack thereof). [7]  On the other side, the Agreement on the Path to Normalization and the Annex from Ohrid are not seen as a de facto recognition by experts on international law [8], but some are of the opinion that the agreements reached between Serbia and Kosovo can be interpreted as a form of implicit recognition, which we believe was what officials in Pristina, and European leaders, too, had in mind. In that sense, the agreement which served mediators in the dialogue as a model for creating the Agreement on the Path to Normalization, the Basic Treaty from 1972, is listed as one of the most representative examples of implicit recognition. [9] However, it is hard to imagine that the European officials were not aware they were using an inadequate term. In that sense, incorporating this term by the Serbian public was understood as a form of “punishing” Belgrade for its non-constructive approach regarding the most recent events related to the attack which took place on September 24 in Banjska/Banjskë, in the North of Kosovo. Regardless, although the use of such terminology is not particularly surprising in the context of leaders of European states mentioned in the introduction, its use by the President of the European Commission, an institution which was not prone towards the term “mutual recognition” in the past, has worried the public, and rightly so.

In principle, the term “de facto recognition” is itself not substantially different than the previously used term “mutual recognition.” However, keeping mind the three basic differences pointed out in the text above:

· the use by certain stakeholders, which did not previously use the term “mutual recognition”;

· the moment in which the change in the discourse took place;

· the inconsistency of using the term in relation to international legal meaning;

the term “de facto recognition” is, for the Serbian public, de facto problematic.

This content was funded by a grant from the U.S. Embassy in Pristina. The opinions, findings, and conclusions stated herein are those of the author(s) and do not necessarily reflect those of the State Department.

New Social Initiative in partnership with Alternativna.

[1] ‘Joint statement by President Macron, Chancellor Scholz and President Meloni on the EU-facilitated Dialogue on normalisation of relations between Kosovo and Serbia’. Italian Government, Presidency of the Council of Ministers. https://www.governo.it/en/articolo/joint-statement-eu-facilitated-dialogue-normalisation-relations-between-kosovo-and-serbia (accessed on November 9, 2023.)

[2] ‘Fon der Lajen ponovila u PR, reći će i u BG: Obaveza Prištine ZSO, a Beograda de fakto priznanje’. KoSSev. https://kossev.info/fon-der-lajen-ponovila-u-pr-reci-ce-i-u-bg-obaveza-pristine-zso-a-beograda-de-fakto-priznanje/ (accessed on November 9, 2023.)

[3] ‘Report on the 2021 Commission Report on Serbia’. European Parliament. https://www.europarl.europa.eu/doceo/document/AFET-AM-719760_EN.pdf (accessed on November 9, 2023.)

[4] ‘US Urges Prompt Mutual Recognition Between Serbia And Kosovo Following EU Proposal’. The Pavlovic Today. https://thepavlovictoday.com/us-urges-prompt-mutual-recognition-between-serbia-and-kosovo-following-eu-proposal/ (accessed on November 9, 2023.)

[5] ‘President Joe Biden says ‘mutual recognition’ key to Kosovo, Serbia talks’. Euronews. https://www.euronews.com/2021/04/20/president-joe-biden-says-mutual-recognition-key-to-kosovo-serbia-talks (accessed on November 9, 2023.)

[6] ‘Fon der Lajen ponovila u PR, reći će i u BG: Obaveza Prištine ZSO, a Beograda de fakto priznanje’. KoSSev. https://kossev.info/fon-der-lajen-ponovila-u-pr-reci-ce-i-u-bg-obaveza-pristine-zso-a-beograda-de-fakto-priznanje/ (accessed on 11/10/2023.)

[7] P. Kilibarda. ’Recognition of States in International Law’ (Doktorska disertacija, University of Geneva, 2021), pp. 54-55.

[8] ‘Šta znači „de facto“ priznanje Kosova koje spominje Ursula fon der Lajen?’. KoSSev. https://kossev.info/sta-znaci-de-facto-priznanje-kosova-koje-spominje-ursula-fon-der-lajen/ (accessed on November 10, 2023.)

[9] P. Kilibarda. ’Recognition of States in International Law’ (Doktorska disertacija, University of Geneva, 2021), pp. 35