General principles

After the objectives, the general principles of the agreements are laid down. The Agreement with Serbia stresses that respect for democratic principles, human rights, the rule of law, and the fight against the proliferation of weapons of mass destruction constitute the basis and “essential elements” of the cooperation with the EU (Preamble, Articles 2 and 3), the violation of which can provide sufficient ground for the suspension of the SAA by either of the parties (Article 133). Here too, the Association Agreement with Ukraine goes further by stating that “the common values on which

the European Union is built – namely democracy, respect for human rights and fundamental freedoms, and the rule of law – are (…) essential elements of this Agreement,”133 _{as are the “[p]romotion of}

132 _{See also Art. 17 SAA: “Cooperation with other countries candidate for}

EU accession (…)”. Emphasis added.

respect for the principles of sovereignty and territorial integrity, inviolability of borders and independence, as well as countering the proliferation of weapons of mass destruction, related materials and their means of delivery (…)” (Article 2)134_{, the violation of}

which can lead to the suspension of the agreement (Article 478). The insistence in the EU-Ukraine AA on the principles of sovereignty, territorial integrity, inviolability of borders and independence is backed up by, inter alia, Article 483 which envisages the application of the

Agreement on the entire

territory of Ukraine. The EU and its member states thus stand united with Ukraine in the rejection of Russia’s illegal annexation of Crimea and Moscow’s support for the breakaway regions in the Donbas. 135 _{Conversely, the}

territorial application of the EU-Serbia SAA does not extend to Kosovo (Article 135, second paragraph). While the secession of Kosovo was the result of years of internal colonisation and ultimately the war inflicted upon it by Serbia, as well as a decade

134 _{Articles 2 AA and SAA both confirm the commitment of the parties to}

the respect for democratic principles, human rights and fundamental freedoms as defined in the 1975 Helsinki Final Act and the Charter of Paris for a New Europe, as well as the Universal Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms. The SAA also mentions the Stability Pact for Southeastern Europe in its preamble and cooperation with the International Tribunal for the former Yugoslavia (ICTY). The AA refers in Article 8 to cooperation with the International Criminal Court (ICC).

135 _{It remains to be seen, however, if, when and how the AA’s legal fiction}

of full territorial application will be turned into reality. Perhaps the gradual application of the EU-Moldova DCFTA over the territory of Transnistria gives rise to hope. See D. Cenusa, “European integration of Moldova in 2015: Top five failures and five hopes”, IPN, 28 December 2015 (http://ipn.md/en/integrare-europeana/73828).

Article 483 envisages the application of the Agreement on the entire territory of Ukraine. The EU and its member states thus stand united with Ukraine in the rejection of Russia’s illegal annexation of Crimea and Moscow’s support for the breakaway regions in the Donbas.

of international governance by the United Nations,136 _{it is striking}

that Belgrade agreed to this territorial exclusion prior to the International Court of Justice’s opinion on the legality under international law of Kosovo’s unilateral declaration of independence.137

Another asymmetry in this regard is that the SAA confirms the right of return for refugees and internally displaced persons (IDPs) and the protection of their property rights (Preamble and Article 82), but the AA only refers to the protection of refugees under international law in the context of bilateral dialogue on asylum issues (Article 16(2)c) and the cooperation in combating terrorism (Articles 13 and 23).138 _{While the legacy of the Balkan}

wars of the 1990s explains the heightened insistence of the EU to commit Serbia to resolve refugee and IDP issues, 139 _{it is}

noteworthy that such references in the EU-Ukraine AA were not sharpened up in the wake of the Russian annexation of Crimea and the destabilisation of parts of the Donbas in the spring of 2014.140 _{This was primarily due to the EU’s fear that re-opening}

negotiations to reflect post-Maidan developments might have brought back Ukraine’s claim for an EU membership prospect

136 _{The SAA refers to “Kosovo under United Nations Security Council}

Resolution 1244”.

137 _{See ICJ, “Accordance with International Law of the Unilateral}

Declaration of Independence in Respect of Kosovo”, Advisory Opinion, 22 July 2010, I.C.J. Reports 2010, at 403.

138 _{The Preamble and Articles 7, 84 and 87 of the EU-Serbia SAA do not}

create that nexus between combating terrorism and the respect for international refugee law.

139 _{In the same vein, Articles 5 and 6 SAA stress the need for Serbia to}

engage in good neighbourly relations. See also the discussion on Title III, below.

140 _{Ukraine-EU Summit, 19 December 2011, Joint Statement, 18835/11}

(Presse 513): “a common understanding on the full text of the Association Agreement was reached”. Legal scrubbing of the political part of the AA part was closed with its initialling until 30 March 2012, while the scrubbing of the more technical DCFTA part of the agreement continued until 19 July 2012, when it was initialled.

with a vengeance.141 _{Then again, on the specific point of the}

protection of rights of IDPs, the negotiators may have considered it sufficient that respect for international refugee law was made conditional in light of the consequences of the fight against the ‘terrorist’ separatists in Crimea and Donbas.