What should we make of Serbia’s argument, repeated recently by Prime Minister Kostunica at the meeting of the UN Security Council, that it was entitled to the protection under international law of its territorial integrity since its current government is committed to inviting its estranged Kosovo-Albanian cousins back into its polity based on equality and non-discrimination, in recognition of their cultural identity and on the basis of full respect for their internal autonomous arrangements?
The argument is neatly summarised by Srdjan Cvijic: “Milosevic’s regime certainly misgoverned Kosovo, but one can justifiedly ask why the Serbian democratic government should have to pay the price for the abuses of Milosevic’s authoritarian regime". ( In "Self-determination as a Challenge to the Legitimacy of Humanitarian Interventions: The Case of Kosovo’, 8:1 German Law Journal 57-79 (2007), at 74). NATO’s bombing campaign, so the argument continues, has relieved the Kosovo Albanian population of the threat of persecution, and possibly with it, of the option of consuming a right to seek external self-determination.
On whichever side of the debate over the underlying international legal and political reasoning accompanying the status resolution one finds himself, the Serbian idea of ‘more than autonomy, less than independence’ never seemed to gain support amongst the Contact Group which, along with UNOSEK, are effectively arbitrating Kosovo’s fate. Indeed, the forcible re-incorporation of 2 million hostile Kosovo Albanians in a 7,5 million-strong Serbian body politic had always appeared to them as running against the true interests of a stable Serbia.Beyond the reliance on the notion of remedial secession that may only tentatively reflect an international legal standard, Serbia’s argument is open to challenge on the ground of its current constitutional choices. If Serbia would have been serious in its intention to grant ‘Kosovo and Metohija’ the widest possible range of autonomous rights within its State, it could have entrenched them in its 2006 Constitution. Instead, the Constitution provided for the possibility of severe restriction of autonomous rights, through means of ordinary legislation, in the fields of territorial boundaries, human and minority rights, the management of provincial assets, kind and amount of direct revenues from Republican level, etc. As the Venice Commission has formulated in its recent Opinion, the Constitution “does not at all guarantee substantial autonomy for Kosovo, for it entirely depends on the willingness of the National Assembly of the Republic of Serbia whether self-government will be realised or not”. (Opinion No. 405/2006), 70th Sess., Venice, 17-18 March 2007, at 8).