Inviolability is like beauty

Posted in Uncategorized - May 1, 2013 - 18 Comments

Unwilling to pledge adherence if a referendum on the Belgrade/Pristina normalization agreement fails, the Serbian opposition and its allies in northern Kosovo are instead going to court.

This is a smart move.  A referendum would have be likely to show majority support for the agreement in Serbia, where people are far more concerned about jobs and the economy than political arrangements for a relatively small number of Serbs in northern Kosovo.  The popular Deputy Prime Minister Vucic and his coalition partner Prime Minister Dacic are solidly in favor of the agreement they negotiated.

I am not a lawyer, but it is not difficult to anticipate at least part of the case the opposition will make.  Article 8 (Territory and Border) of the 2006 Serbian constitution reads:

The territory of the Republic of Serbia is inseparable and indivisible.

The border of the Republic of Serbia is inviolable and may be altered in a procedure applied to amend the Constitution.

Part of the preamble reads:

Considering also that the Province of Kosovo and Metohija is an integral part of the territory of Serbia, that it has the status of a substantial autonomy within the sovereign state of Serbia and that from such status of the Province of Kosovo and Metohija follow constitutional obligations of all state bodies to uphold and protect the state interests of Serbia in Kosovo and Metohija in all internal and foreign political relations.

Let’s leave aside the fact that this constitution was only passed because Kosovo Albanian names were not counted on the voting list, thus enabling the constitutional referendum to meet the requirement that 50% of registered voters participate.  That’s true but likely irrelevant seven years after the fact.  Does the normalization agreement alter the “inviolable” border of the Republic of Serbia, which seems to require an amendment to the constitution?

Inviolability, like beauty, is in the eye of the beholder.  The normalization agreement certainly provides for the reintegration of the judicial, police and electoral systems of northern Kosovo into those of the Pristina-based institutions, which are outside Belgrade’s authority.  It also implies that Kosovo is an independent and sovereign state that will proceed on the path to the European Union independent of Serbia.  Belgrade has also agreed to an EU-invented border/boundary regime that is normally practiced only at an international border.

Still, the normalization agreement does not alter the Serbian border.  The Serbs in Kosovo will govern themselves at the municipal level and participate in an association of Serb municipalities.  They can receive assistance from Belgrade.  I can imagine a court decision that simply confirms that the border has not changed.  I can also imagine a court decision that declares the agreement in violation of the constitution.  And then there are all those in-between possibilities:  a decision not to decide for procedural reasons, a decision that the court is not competent to rule on matters of this sort….

Any judicial process will take time.  If the Serbian government does what it is now saying it will do, implementation of the agreement will come well before a court decision, fait accompli.  Delaying implementation to see how things will turn out would put at risk Belgrade’s big prize:  the date for EU accession talks to begin.  Dacic and Vucic won’t want to do that.  Most of Serbia’s citizens won’t either.

So implementation will proceed.  Those who take this case to court run the risk of winning so late that it makes no difference.  But if they win it will mean that Serbia’s eventual entry into the European Union will require, as many of us have suspected, a constitutional amendment.  That’s hard to picture, but not long ago it was hard to picture meetings between Dacic and Thaci.  Inviolability, like beauty, may not last forever.

 

Tags : ,

18 thoughts on “Inviolability is like beauty”

  1. The government must figure that it has little to fear from the Constitutional Court: either it will decline to take a case based on borders, or it will rule in such a way that the government’s freedom of action is not hampered, or the government will find a way around its ruling.

    At the time when the Integrated Border/Boundary Management system was agreed to the Northerners and Kostunica also “insisted” that the Constitutional Court give its opinion. The Court declined, as I remember, on the basis that the line was not a border. This alone may be enough to scotch the idea before it goes any further.

    Even if it takes the case, on some other basis, the Constitution is ambiguous enough on how changes can be made that it may not take much effort to find for the government and what the public apparently wants.

    And if all else fails, and the Court rules unambiguously against the agreement, the government will undoubtedly find a way to do what it wants to do anyway. A few years back the Court decided that it was unconstitutional to pay employees in Kosovo more than one salary, since this was not legal in Serbia itself and Kosovo was Serbia. Tadic immediately reassured everybody that nothing would change and somehow the money kept flowing south.

    Meanwhile, as Serbia tries to find a way to move ahead, Kosovo is already enjoying some rewards for its cooperative stance – its first bilateral agreement with an EU member state (Luxembourg is giving it money for education), hints on future recognition by three of The Five (Slovakia, Romania, Spain), and admission to 22 EU organizations on an equal level with Serbia are what I’ve seen mentioned so far.

    1. Amer, could you please cite the sources (either in English or Spanish) which said that Spain will recognize Kosovo’s independence? Wishful dream!

      1. Very difficult for the eu 5 to recognize Kosovo if there is not a agreement between Kosovo and Serbia ie recognition.

      2. It was the past FM, a few days ago, in one of the Albanian papers. Ex-officials don’t have the ability to act, but they sometimes they have more freedom to suggest where the country is going, knowing what the constraints were when they were in power.

        1. http://www.gazetaexpress.com/?cid=1,13,110427

          It was the Spanish ex-ambassador to the U.S. (wrong diplomat, sorry):

          “Në fund të fundit, nuk bën të jemi më katolikë se Papa dhe pika e 14-të e marrëveshjes së re thotë se asnjë nga dy nënshkruesit nuk do të pengojnë rrugën e njëri-tjetrit drejt BE-se. ”

          “Ultimately, we cannot be more Catholic than the Pope and Point 14 of the agreement says that neither party is to hinder the other’s path toward the EU.”

          There’s no reason to worry, he says, because Kosovo bears no resemblance to Spain.

          1. They can write whatever they want in Albanian papers. Balkan papers are well know that are economical with truth. If it would be coming from some other source like Spanish newspaper I would have taken them more seriously. Until then wishful dream. I heard that at some point it was Greece who was hinting that it would recognize Kosovo, but it was never talk that Spain would do it. They have very strong independence movements in different part of the country (Basque, Galicia, Catalonia) so basically I don’t see this statement that Spain does not resembles Kosovo as correct. Maybe Albanian journalist got lost in translation?

      3. Ok, here is the entire op-ed piece in Spanish: Balcanes. una buena noticia (28.04.2013) – http://www.diariodemallorca.es/opinion/2013/04/28/balcanes-buena-noticia/841899.html – with the relevant quote:

        Es un acuerdo, finalmente, que obligará a replantear sin prisas la relación con Kosovo a aquellos países, como el nuestro, que no reconocen su independencia declarada unilateralmente. Al fin y al cabo no hay que ser más papistas que el Papa y el artículo 14 del nuevo acuerdo dice que ninguno de los dos firmantes, Serbia y Kosovo, pondrá trabas a la aproximación del otro a la UE. Y no hay que tener miedo, Kosovo no se parece absolutamente en nada a nuestro país.

        * Embajador de España

        Pleasant dreams!

        1. Amer, you right what is written.

          It says “Es un acuerdo, finalmente, que obligará a replantear sin prisas la relación con Kosovo a aquellos países, como el nuestro, que no reconocen su independencia declarada unilateralmente.” They will rethink but they don’t say that they will.

          Obviously pressure is coming from Germany and Spain is in bad economic situation.

  2. i think the agreement will go thru,the north kosovo serbs will cave maybe even get a few more rights thru further negotiations.

    i WONDER IF THIS WILL BE THE NEW FLASH POINT IN the balkans:

    http://www.eventbrite.com/event/6493481177#

    Maybe Mr.Serwer can create a topic when the conference is over and fill us in on the details.

    1. Ali Ahmeti is on US black list, he should not be allowed to travel to US.

      1. But Ali Ahmeti is there so you can’t suggest what US does.

        Let me tell one more thing. American diplomats said many times to Serbian team in Viena (during talks on 2006 and 2007) “don’t rely on Russian veto against Kosovo at UN SC”. Its know what happened thereafter.

        Secondly, none of the five from the EU is not blocking Kosovo toward the EU i.e they are approving SAA with Kosovo. They are not stupid. They know what they are doing i.e recognizing de facto Kosovo as a state since SAA is part of the EU Stabilisation and Association Process (SAP) and European Neighbourhood Policy (ENP). At present, the countries of the Western Balkans are the focus of the SAP.

        As you can see this is a process with Balkan countries but not entities i.e Republic of Srpska.

        Having all of this one should say to you “don’t rely so much on non recognition of Kosovo, formally, from the EU five, at the moment”.

        1. Approving SAA does not mean anything. Albania started SAA much earlier than Serbia, but it is still not candidate state, Serbia is. SAA is seen as an encouragement to start reforms. You said that those five are approving SAA with Kosovo??? How they are approving? SAA has to be ratified by the parliament of each state as far as I remember.

          1. I am not speaking for the process, as a such, but for the fact that SAA is related to COUNTRIES. I wish to recall you that EU commission (including the five) gave recommendation for Kosovo to be granted SAA.

            For such recommendation, of course, voted and did not have objections these five EU countries which don’t recognize Kosovo formally as independent country. Having into consideration that SAA is related to COUNTRIES and not entities, the conclusion is clear – these five EU members, de facto recognized Republic of Kosovo as independent country with separate process of EU integration.

  3. Fadil, you are spin master, Albanian Alister Campbell.

    As you wrote “EU commission (including the five) gave recommendation for Kosovo to be granted SAA.”This is not truth.

    “In February 2012, the Council takes note of the intention of the Commission to launch the feasibility study for a Stabilisation and Association Agreement between the European Union and Kosovo, without prejudice to Member States’ position on status, or any future decisions to be taken by the Council.”

    This means that EC has recommended SAA negotiations to start with Kosovo, after Kosovo makes progress on certain issues such as Rule of law, Protection of minorities and etc.

  4. Micha,

    You should update yourself. I was not talking for February but the last meeting of EU commission.

    Anyway you do admit that the EU recommended starting of SAA negotiations with Kosovo and since such negotiations can be arranged ONLY with COUNTRIES the logic tells us that even these five EU countries treat Kosovo as COUNTRY.

    If you listen professor Vladimir Pavicevic from faculty of political sciences of Belgrade University you would note how he says that even Serbia recognized Kosovo practically and formally.

    http://www.b92.net/video/video.php?nav_category=1336&nav_id=711945

    1. There is difference between starting of SAA negotiations and granting SAA. Two BIG differences.

      I dont care what professor Vladimir Pavicevic says.

      Be straight with your facts, you have tendency to blow up things out of proportion.

      1. Micha,

        I understand your wishful thinking but reality is as I said. I understand you don’t care what professor Pavicevic says but first of all nobody asked you whether you do care or not what he said. Secondly, Mr. Pavicevic is vice president of new political party in Serbia, which clearly supported Brussels agreement.

        So Mr. Pavicevic knows that Brussels agreement is “practically and formally recognition of Kosovo” and in other side he supports such agreement!! This is not, for sure, just propaganda but acknowledging the reality.

        Lastly, may I ask you what you will say when the EU will grant SAA for Kosovo??

        Let me remind you that Serbia signed the deal in Brussels and the last paragraph says ” neither side will block, or encourage others to block, the other side’s progress in the respective EU paths.”

Comments are closed.

Tweet