Inviolability is like beauty

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.