Several issues need to be resolved between Kosovo and Serbia. Serbia’s refusal to recognize Kosovo’s independence is the main problem. Even in the Brussels negotiations, the terms “Republic of Kosovo and Republic of Serbia” are avoided, and instead terms of a geographical rather than a legal nature are used, such as “Kosovo-Serbia” or “Pristina-Belgrade.” This is because the European Union (EU) remains committed to maintaining a neutral stance on Kosovo’s state status.
Emphasis on “Kosovo” in Serbia’s Constitution
As it will be remembered, in the independence referendum held in Montenegro on 21 May 2006, 55% of the Montenegrin people voted in favour of independence and thus Montenegro officially seceded from the Union of Serbia and Montenegro and became independent.[1] Subsequently, on September 30, 2006, the National Assembly in Serbia adopted the new Constitution and submitted it to a referendum on October 28-29, which was approved with the support of 53% of the population. Finally, the new Constitution entered into force on November 8, 2006.[2] Consequently, with the independence of Montenegro, the Union of Serbia and Montenegro was dissolved, and the two countries adopted new constitutions.
The 2006 Constitution of Serbia mentions Kosovo in various articles of the constitutional text, starting with the “Preamble.” All these constitutional provisions have in common that they emphasize Kosovo as an integral part of Serbia. The “Preamble” of the Constitution states that the Province of Kosovo and Metohija is an integral part of the territory of Serbia and enjoys a broad autonomous status within Serbia.[3]
Under the Constitution of Serbia, in addition to the Autonomous Region of Kosovo and Metohija, there is also the Autonomous Region of Vojvodina. However, it is stipulated that the autonomy of the Autonomous Region of Kosovo and Metohija shall be regulated by a special law to be adopted by the procedures provided for the amendment of the Constitution.[4]
Again, when taking office, the President of Serbia swears an oath before the National Assembly, beginning with “I will, with all my efforts, protect the sovereignty and integrity of the territory of the Republic of Serbia, of which Kosovo and Metohija are a part…”.[5] In short, the Serbian Constitution defines Kosovo as an “integral part” of Serbia. This is the main source of the problem.
Kosovo’s Constitution Emphasizes “Neighborhood”
The 2008 Kosovo Constitution’s “Preamble” emphasizes the belief that Kosovo will contribute to the stability of the region and Europe by building good neighbourly relations and cooperation with all neighbouring countries.[6]
As can be seen, the approach of the Kosovo Constitution is based on a conciliatory and peaceful language. This refers to other neighbours, especially Serbia. Thus, the aim is to overcome the tense relations in the Balkan geography and to open a new page. In addition, Article 1, Paragraph 3 of the Constitution states that the Republic of Kosovo shall not make territorial claims against any state or part of any state and shall not seek to unite with any state. This means that Kosovo does not plan to unite with Albania or the three Albanian-majority countries in southern Serbia.
In Search of Solutions
For the problems between Kosovo and Serbia to be finalized, there needs to be a strong will in both countries. This requires the same stance and determination from the ruling and opposition sides. However, this is not easy in Kosovo. Only with the intervention of the powerful states of the West, especially the US, can a common political will be established.
The first thing that strikes one when looking at the Serbian political scene is that there is almost no opposition in the National Assembly. Indeed, the ruling coalition has a qualified majority. However, politics in Serbia is not only about political parties. The Serbian Orthodox Church also plays a key role in the political scene. Therefore, in the absence of a consensus on Kosovo in the “political power-church” tacit alliance, no solution is possible. Moreover, the Serbian government led by President Alexander Vučić and the Church agree that Kosovo cannot be recognized as an independent state.
In addition to the political dimension, the legal scope of the event is also important. Although recognizing the existence of a state is a political will, this will must be realized through “legal action.” In such a way that the recognition between two countries that do not intend to recognize each other is established by a government decision.[7] That is, the government of one state can decide to recognize the existence of another state through an ordinary or extraordinary cabinet meeting. However, if there are problems between the two countries, the situation is different. The resolution of Kosovo-Serbia relations is not just a matter of political will, but a process in which the legal dimension comes to the fore.
On the one hand, the Brussels negotiations are progressing, albeit slowly, and on the other hand, the Berlin Process, which plays an important role in the European integration of the Western Balkans, is underway. However, in this environment, Serbia’s continued recognition of Kosovo as its autonomous region in the Constitution prevents the resolution of the issues between the parties.
By defining Kosovo as an autonomous region, the Serbian Constitution obliges all institutions of the Serbian state not to recognize Kosovo as an independent neighboring country. As a result, the tendency of the two countries to establish and maintain lasting peace and neighborly relations disappears. This is because no political agreement can contradict the Constitution. Therefore, unless the Constitution of Serbia is amended, permanent solutions cannot be reached through negotiations. At most, some diplomatic or technical results can be achieved in accordance with the conjuncture.[8]
[1] “Independence of Montenegro”, Britannica, https://www.britannica.com/place/Montenegro/Independence, (Date of Accession: 13.12.2022).
[2] “Constitution of Serbia”, Wikipedia, https://en.wikipedia.org/wiki/Constitution_of_Serbia, (Date of Accession: 14.12.2022).
[3] Sırbistan Anayasası için bkz. Palament¸http://www.parlament.gov.rs/upload/documents/Constitution_%20of_Serbia_pdf.pdf, (Date of Accession: 15.12.2022).
[4] 182/2 article of the Serbian Constitution.
[5] 114/3 article of the Serbian Constitution.
[6] Kosova Anayasası için see. Gkz.rks, https://gzk.rks-gov.net/ActDetail.aspx?ActID=3702, (Date of Accession: 17.12.2022).
[7] Zejnullah Gruda, E drejta ndërkombëtare publike, Furkan ISM, Shkup 2009, p. 83.
[8] Ditar Kabashi, “Qasja penguese e Kushtetutës së Serbisë për bashkëpunim me Kosovën”, Revista Shenja, Shenja, https://shenja.tv/qasja-penguese-e-kushtetutes-se-serbise-per-bashkepunim-me-kosoven/, (Date of Accession: 17.12.2022).
