Institute for Political Studies UDC: 32(497.11):323.173(497.15) Serbian Political Thought DOI: https://doi.org/10.22182/spm.7042020.12 No. 4/2020, Year XXVII, Review article Vol. 70 pp. 227-247 Bojan Bojanić, Žaklina Spalević Bojan Bojanić*4 Faculty of Law, University of Prishtina with temporary seat in Kosovska Mitrovica Žaklina Spalević Singidunum University, Faculty of Tourism and Hospitality Management, Belgrade ONE DRAFT OF A POSSIBLE CONSTITUTIONAL ARRANGEMENT FOR KOSOVO AND METOHIJA**5 Abstract The authors will point out some possible models for solving an extremely complex problem, which for decades has been an open issue for which, without much success, a mutually accept- able solution is being sought - Kosovo and Metohija. The paper analyzes three possible options, with different intensity of relations between the Republic of Serbia and so called Kosovo. In the first case, which implies the strongest relationship between Serbia and Kosovo and Metohija, this issue could be resolved by passing a law on substantial autonomy (with changes to certain constitution- al provisions) which would formally assign all the competencies now available in the province, while the other two models do not imply the adoption of such a law, so it could be done exclusively by changing the Constitution of the Republic of Serbia. In none of the proposed models, the so-called Kosovo would not have full international legal subjectivity, Serbia would not recognize Koso- * [email protected] ** This paper is the result of research on the project „Legal Aspects of Contemporary Social Movements in Republic of Serbia (2019-2021)”, Faculty of Law, University of Prishtina with temporary seat in Kosovska Mitrovica. 227 SERBIAN POLITICAL THOUGHT vo’s self-proclaimed independence, nor could so-called Kosovo become a member of the United Nations, and there would be no Kosovo Army. The province would have internal sovereignty. Keywords: Kosovo and Metohija (KiM), Constitution, Duality of Constitutional Orders, Sustainable Solutions. INTRODUCTORY CONSIDERATIONS Kosovo and Metohija represent the core of our national and state-building identity. It gained a special place in the collective memory of Serbs thanks to the fact that a powerful medieval state of Nemanjić dinasty emerged in Kosovo and Metohija (herean- dafter: KiM) and that it was its spiritual, economic and national centre and core. Hence, the term Kosovo for Serbs means the holy Serbian land, “Serbian Jerusalem”, it is also a space from which Serbs have been systematically repressed by Albanians for cen- turies (Bataković 1999, 7). For KiM Albanians, the word Kosovo has the opposite meaning and it is a symbol of “ancient Albanian land” and means a combination of ancient Illyrian and modern Albanian ethnic community living in that area, and at the same time is a symbol of “occupied ethnic territory” (Bataković 1999, 8-9). The specificity of the constitutional position of the Autono- mous Province of Kosovo and Metohija (hereandafter: KiM) in the constitutional system of Serbia can be observed in the period from the formation of the second Yugoslav state until today (Bojanić 2017, 179-180). The Constitution of the Federal People’s Repub- lic of Yugoslavia from 1946 established a form of asymmetric decentralization in Serbia, as one of the six Yugoslav republics. The Autonomous Province of Vojvodina and the Kosovo-Metohija Autonomous Region were formed. The latter is constitutionally equated with Vojvodina by the Constitution of the SFRY from 1963, when it acquired the status of an autonomous province. The strengthening of the status of the autonomous provinc- es culminated in the 1974 Constitution, when they were almost equated with the republics in their position and became constitu- tive elements of the federation. This was preceded by the consti- 228 Bojan Bojanić, Žaklina Spalević ONE DRAFT OF A POSSIBLE... tutional amendments from 1968, and in addition to the fact that Serbia’s position was significantly weakened by them, the name of the southern Serbian province, which remains without Metohija in its official name, was also reduced. This process changed its direction at the end of the eighties of the twentieth century, when autonomy returned to the limits of its original meaning. As the decentralization of power in the previous period was basically a retrograde process that led to the disintegration of Serbia, in 1989 the Republic of Serbia, in an effort to eliminate the weaknesses of the then organization of power, passed amendments to the 1974 Constitution, where status of the provinces has changed significant- ly. Their normative powers were significantly narrowed, and Serbia no longer needed the consent of the provinces for the constitutional revision. The autonomous provinces no longer had constitutional and legislative power, nor their own judicial system. Both post-socialist constitutions represent a complete break with the previous concept of decentralization of power in Serbia, and autonomy took on a new form which, now in the opposite direction to the period of socialist constitutionalism, deviates sig- nificantly from its theoretical concept (Bojanić 2017, 179). Here we primarily mean the position of AP Vojvodina, since on the ter- ritory of AP Kosovo and Metohija in 1999, after the end of the war that began with the attack of the most powerful military alliance - NATO on Serbia, an international protectorate was established, and in 2008 contrary to international and domestic law there was a declaration of independence of the so-called Republic of Kosovo, so that the implementation of constitutional provisions relating to the Autonomous Province of Kosovo and Metohija is not possible at present. An attempt to reach a solution to this decades-long conflict began in 2010, under the auspices of the United Nations, and with the mediation of the European Union in the negotiation process between Serbia and the so-called Kosovo. The dialogue resulted in the signing of The First Agreement of Principles Governing the Normalization of Relations (2013), (hereandafter Brussels Agree- ment) and the Association/Community of Serb majority municipal- ities in Kosovo – general principles/main elements (2015) (here- andafter: CSM). These two political, as well as several technical 229 SERBIAN POLITICAL THOUGHT agreements that were concluded in the negotiation process, did not, however, bring the desired results. They have only been partially implemented, or we can say, they have been implemented to the extent appropriate to Priština, while the part related to the Union of Serbian Municipalities is the only part that can potentially bring certain benefits to the Serbian side, although extremely limited, stay only as a word on paper. COMPARATIVE EXPERIENCES AS A POSSIBLE GUIDE TO THE “FINAL” SOLUTION In an attempt to find an answer to the question of which mod- el would be sustainable and what would be a mutually acceptable solution for the KiM, we will take a look in comparative prac- tice. Numerous conflicts in different parts of the world have been resolved, more or less successfully, in very different ways. Some solutions have stood the test of time, while on the other hand we have conflicts that have lasted for decades and have several agree- ments behind them that have not been able to be a good response to existing conflicts for a long time, and the final solutions are still not in sight. Arrangements that deserve our attention in light of the theme of this paper are undoubtedly Hong Kong, the Åland Islands and South Tyrol. The Hong Kong Special Administrative Region (HKSAR) is one of the exemplary models with sui generis formula “one country, two systems” enabled the re-establishment of Chinese sovereignty over a part of its territory that was a British colony for more than a century (from the First Opium War to 1997). The period of colonial rule left strong consequences on culture, economy, education, in a word, on all segments of the life of the citizens of Hong Kong. In order for the reunification process to run smoothly, with much less negative consequences for the citizens of this region, the mother- land opted for a theoretical model that was not previously applied in practice, and except in the case of Hong Kong, the same formula was applied to Macau (1999). The basis for the establishment of this model was created by the constitutional changes from 1982, when the new Constitution of the People’s Republic of China was adopted at the fifth session 230 Bojan Bojanić, Žaklina Spalević ONE DRAFT OF A POSSIBLE... of the Fifth National People’s Congress. Article 31 stipulates that the state may, if necessary, establish special administrative areas by law (Constitution of the People’s Republic of China). China has committed itself not to establish a socialist system on the territory of HKSAR and that the existing political and economic system will be maintained on the territory of Hong Kong for the next 50 years (BL, Аrt. 5) . It is clear that China intends to preserve the specifics of the HKSAR within the “one country, two systems” model, while at the same time being part of a single national space and as such an example of a possible reunification of China with Taiwan (Yip 2015, 21). The position of Hong Kong as an inseparable part of China (BL, Аrt. 1), the organization of government and the relationship with the motherland are regulated by the Basic Law of Hong Kong Special Administrative Region of the People’s Republic of China. The People’s National congress granted HKSAR a