Kosovo: An Agreement on the Crossing Points? UPDATE

After some initially conflicting statements,  Pristina and Belgrade have reportedly reached an agreement in principle on handling the boundary crossing points and customs.  Details have not yet been released [a version from the Internet below] but the framework to be applied will be a form of the EU's Integrated Border Management (IBM) approach.  This apparently means some form of joint Serbia/Kosovo presence at the northern and southern crossing points.  But according to Serbia's lead negotiator, Kosovo and Serbian police and customs will be only observers at the northern Gates which will remain under EULEX control.

Exactly how the northern Gates will function and what customs activities, if any, will take place there remains unclear and may indeed require further elaboration.  According to the Serbian side, there will be no state symbols at the crossing points, neither Kosovo nor Serbian officials will have any "executive" functions and there is no agreement yet on the "fiscal and revenue" arrangements.  

Both Pristina and Belgrade will present the framework agreement in their own manner.  From the Kosovo side, this will be seen as reaffirming the dividing line as a border.  Belgrade will insist that the mechanism to be implemented will be as an administrative boundary.  The EU itself is being quite sensitive to what it calls the arrangement, as witnessed by the careful way EU facilitator Cooper avoided spelling out exactly what "IBM" means and then ended up calling it the "integrated management of crossing points."

Depending on how the details fill out the agreement - apparently the subject of further discussion - the arrangement could defuse the current crisis in the north and provide both sides something to claim as a victory.  In the south, Kosovo would gain the ability to refer to the IBM approach as Serbian acceptance of a sovereign border while Serbia would be able to say it has sent its police and customs back to Kosovo.  In the north, an agreement to keep the crossing points under EULEX but with the presence of customs officials (from both sides) could offer a status neutral outcome to retaining Kosovo as one customs space.

I've written previously about possible status-neutral approaches to customs at Gates One and 31.  The key points would be whether or not customs fees would be collected there and, if so, how would they be handled.  If no customs fees are taken at the northern crossing but both sides simply assist EULEX by recording information - which the Kosovo authorities might then use to levy and collect fees south of the Ibar - this would appear consistent with UNSCR 1244.  If fees were collected by EULEX and then go into escrow pending political agreement, that too would be status neutral.  If EULEX collected fees only for goods bound for the south, this also could be done in a status neutral manner, though perhaps fairly cumbersome in practice.  It seems unlikely that Belgrade would agree to customs collection for all goods at the northern Gates by Kosovo officials, or even by EULEX itself if all funds went into the Kosovo treasury.

Filling in the details will take time.  But the new agreement does raise the possibility that perhaps, the German hardline against granting Serbia candidacy could be dropped in time for a December 9 decision.  The EU facilitator reported progress on other matters as well in the Brussels talks.  Perhaps the tough talk from Merkel and KFOR was focused on pushing Belgrade the last steps.  (One wonders who helped push Pristina, as it does not appear to make the maximalist gains it had hoped for, the US?)

It remains to be seen how the northern Kosovo Serbs will respond.  It may take action on their part to start removing the barricades to also remove the remaining excuse for not giving Serbia candidacy.  President Tadic has said he now expects their support.  If the agreement reached on the crossing points is status neutral - even if not in their view ideal - it would be worth considering.  But someone may have to give them a clearer idea of those important details.  Is there time before December 9?

The Text as reported from Within the Gates:

IBM (fn1) Agreed Conclusions
1. In line with the Lisbon Treaty, and relevant EU legislation (fn2) and given that both parties are part of the EU's Western Balkans agenda, they will be required gradually to harmonise their legislation with the EU acquis and in particular to apply the concept of IBM;
2. In the interest of faster and more effective processing, the parties, under the overall guidance of the EU, will apply the concept of IBM;
3. The parties intend gradually to set up joint integrated posts at all their common IBM crossing points. This cooperation will follow the best European practice as it is progressively further developed by the European Commission. The work will be given a high priority; the projects will be identified jointly and will be implemented as soon as practically possible;
4. The joint, integrated, single and secure posts will be located within a 'common area of IBM crossing points', jointly delineated, where officials of each party carry out relevant controls. Exceptionally, and limited to the common IBM areas, the parties will not display symbols of their respective jurisdictions ;
5. The arrangements will include a balanced presence, in line with requirements, from both parties of all related services such as customs, police etc. and will cover matters such as the location of the crossing points, the nature of the facility, opening hours etc. In line with its mandate (fn3) at the crossing points Jarinjë/Rudnice and Tabavije/Bërnjak, this presence will include EULEX officials. EULEX will also be present at crossing points Dheu i Bardhë/Konqul, Merdare/Merdarë, Mutivodë/Mutivode and Depce/Muçibabë;
6. At the core of the arrangement there will be a clear assignment of applicable legal responsibilities and liabilities to each party's jurisdiction;
7. A tri-partite implementation group, chaired by the EU, will be established to implement above arrangement as soon as practically possible. For that purpose, a technical Protocol will be developed and signed, if necessary separately with the EU, which will take account of the parties' different views on the question of status. The implications of these conclusions will be taken into account in implementing freedom of movement;
8. This agreement does not cover any general or specific revenue or fiscal matters;

fn 1 One party recognises the line as a border; the other party recognises the line as an administrative boundary.
fn 2 As defined especially in the Schengen Borders Code, Frontex Regulation, Local Border Traffic Regulation, VIS Regulation and Community Code on Visas;
fn 3 As defined by Council Joint Action 2008/124 CEFSP, Article 3, Section a;