Wednesday, May 31, 2006

Is independence referendum legitimate?

The results of the Montenegrin referendum were confirmed today and became official, thus, the republic became independent and the process of separation of the State Union of Serbia and Montenegro became official.

Independence of Montenegro, inevitable nourishes independence aspirations of other territorial entities across Europe and the World. The representatives of the Basque and Catalan territorial autonomies closely followed the Montenegrin referendum and the political climate evolving around this important event. Kosovo Albanians are hopeful that the independence of Montenegro will facilitate their speedy separation from Serbia and the Bosnian Serbs claim that they have right to vote on the future of the state of Bosnia and Herzegovina.

International law has very little to say on the legitimacy of a particular independence referendum, while constitutional orders of only few countries of the world consider secession a constitutional option.

The international community considers the independence of Kosovo a legitimate option while it has a diverse opinion in the case of the Serbian entity in Bosnia-Republic of Srpska. Looking at the legal arguments strictly speaking none of the two have the right to secede. Kosovo was an autonomous province of Serbia in the constitutional order of the Socialist Federative Republic of Yugoslavia, and as such it did not have the right to secede. Such right belonged only to the Republics. The arguments that Kosovo was de facto granted a status of the republic with the right of veto in the executive body of the ex-Yugoslavia, remains weak in this context. In the case of Bosnia and Herzegovina, the legal argument is similar. However, why is the constitutional order of a undemocratic communist state as the ex-Yugoslavia was, considered as a legal precedent in this case? Could the after Dayton territorial delimitation of Bosnia become legitimate over the passage of time in such a way as to allow the independence referendum for the Bosnian Serbs and Croats? Not now, but in 20 years time, when the current constitutional order of Bosnia becomes not only a legal but also a social and political fact. All these are questions that will be on the top of the political agenda in these countries for the years to come. Independence of Montenegro, whether one wants to admit it or not, will certainly have implications on the case of Kosovo and possibly Bosnia. Montenegro’s independence still found grounds in the legal system of the state of ex-Yugoslavia. In Kosovo, this is clearly not the case. Granting Kosovo independence without the consent of Serbia will be crossing of the Rubicon, and no one could stop the Bosnian Serbs (and Croats) to dissolve the state of Bosnia and Herzegovina. The independence of Montenegro, finally completed the series of legal sucessions of the ex-Yugoslav republics. Going beyond it would mean creating a precedentand a wholy novel legal practice, appealing to many independence movements around the world.

No comments: