Negotiating a Viable State Union of Serbia and Montenegro

Negotiating a Viable State Union of Serbia and Montenegro

Talks on the Constitutional Charter of Serbia and Montenegro could not produce an agreement by the initial deadline of end-of-July. The stakes are high for the parties concerned but the EU is not indifferent to the end result either. The EU might not be intervening directly in the negotiation process but its subtle influence is felt on the negotiating table.

When Serbia and Montenegro signed in March 2002 what became known as the “Solana Agreement,” they agreed in principle to put in place a state union which would make the entity eligible for a Stabilisation and Association Agreement (SAA) with the EU. The EU has clearly stated on many occasions that the precondition for initiating this process is the existence of a functioning common state able to take on obligations under international law and to implement domestic measures arising from them.

How does this translate into practice? As regards the common purpose and the common institutional framework of the state union, the debate is structured by a draft produced by the Venice Commission of the Council of Europe and backed by the EU (unfortunately, this document is not available in the public domain). The text put forward by the independent legal experts of the Venice Commission (after consultation with EU experts) provoked some sharp reactions, especially from the Montenegrin side, as there were fears that the proposed draft went beyond what the two parties had agreed to and signed in Belgrade. The thorny question is the degree of centralisation and the primacy of authority in the new state union. Objections were raised to the language used since certain provisions were seen to allow for broad interpretation in the future that could result in additional competencies for the new state formation at the expense of the power of the republics. The parties may disagree on what makes a viable state union. But it is clear to everyone that the final constitutional arrangements will have to measure up to European standards of democratic governance and the Council of Europe as well as the EU hold the key to certifying that.

As regards the common economic fundamentals of the state union, one could have easily predicted in which economic areas the integrationist solution would prevail – customs and trade (see the economic action plan adopted by the two governments of Serbia and Montenegro). In order to sign a SAA with the EU and negotiate a trade liberalisation scheme with it, Serbia and Montenegro are expected to have harmonised customs tariffs and foreign trade regimes. The same is true for the prospective membership of the state union in the WTO. It is not surprising that the parties have not expressed a preference for a common budget or a common currency, nor have they entrusted the new state entity with own property rights. Are the agreed elements of an internal market sufficient to build a common state? Probably not but they are the absolute minimum that can qualify the new state union for at least a feasibility study from the European Commission which, if positive, will initiate the EU stabilisation and association process.

The EU says it is up to the parties to agree on their constitutional framework and the terms of their economic co-operation. Democracy is about negotiating compromises in an open and transparent manner and it is not the EU’s business to make choices on behalf of others. As Commissioner Patten put it himself, “[w]e do not want to impose any solutions: but the EU stands ready to do all it can to assist.”

Yet it is obvious that the end result of the negotiations for a state union between Serbia and Montenegro is somewhat predetermined. With or without acknowledging it, the EU is influencing the outcome of these talks, if not by direct interference then at least by limiting the options from which the parties can chose and def ining the acceptable parameters which the parties should strive to approximate.

In order to establish the fundamentals of a common state, the governments of Serbia and Montenegro are invited to reflect and decide upon the degree of institutionalisation of common state functions and the level of harmonisation of their economic systems. This is nothing new for the EU itself which periodically goes through a similar exercise. The EU’s own experience suggests that common institution building and common economic policy making is not a quick and easy task. The process is equally painful for the EU itself when common institutions and common policies have to be reformed. And every time it involves tough bargaining until deals are struck in the last minute. Why is this effort persistently so difficult? For a simple reason – it touches the core of what constitutes a state and requires redefinition of established relationships and traditional perceptions of sovereignty.

Similar dynamics can be found at work in the current negotiations for a state union of Serbia and Montenegro. Notwithstanding the recent history of co-existence in a common state structure, Serbs and Montenegrins have to answer the same basic questions. It is known that Montenegro has instituted policies of a de facto independent state in the last years. It is also not a secret that the development paths of the two republics have substantially diverged in that period. One should also not forget that the option of holding an independence referendum at the end of the third year after the establishment of the state union of Serbia and Montenegro is still available for both constituent entities. Given this reality, contention is certain to push towards a minimalist outcome.

The European perspective for the Balkan countries is a matter of mutual interest. It is true that it is Serbia and Montenegro who are knocking on the EU’s door and asking for an entry ticket. But it is equally true that the EU is highly interested in making the Balkans the success story of its common foreign policy. Hence, the position “it is your choice” does not precisely reflect the actual situation. Claiming the moral high ground in dealings with the Balkan countries is not quite the same as upholding democratic principles. By recognising the difficulties of negotiating common solutions and its own involvement in making a viable State Union of Serbia and Montenegro, the EU would be more credible in offering to help the parties make their own democratic choices.

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