The March 2002 Belgrade Agreement on the new union specified that a Constitutional Commission, drawn from the parliaments of the FRY, Serbia and Montenegro, should draft a Constitutional Charter, to be submitted to the parliaments by the end of June 2002. It quickly emerged that the deadline was overly ambitious; arguments about implementation of the Agreement began even before the Constitutional Commission had been convened.
That Commission did not meet until 18 June 2002, after which months of wrangling followed, during which opening
positions were repeatedly re-stated without forward movement. Hopes for a compromise were regularly disappointed. The European Commission for Democracy through Law (the ‘Venice Commission’ of the Council of Europe) contributed a draft text in July 2002 in an effort to un-block the proceedings, but this was rejected by Montenegro’s pro-independence parties.
The most contentious point was a procedural issue of huge symbolic importance: would the unicameral parliament of the new union be directly elected, or delegated by the parliaments of the two republics? This was seen as going to the heart of the nature of the joint state: would it function as a real union, or would it be a largely paper union of what would for most practical purposes be independent states on their way to full separation? A directly elected parliament would, it was believed, enjoy greater legitimacy – and give greater legitimacy to the joint state – than a delegated one. Hence the pro-independence parties in Montenegro favoured a delegated parliament, while their pro-Yugoslav rivals, as well as most Serbian parties, advocated direct elections. The pro-independence parties also were determined to maintain the principle that the manner of electing deputies to the joint parliament should be regulated by the republics, not determined in the Constitutional Charter.
Other contentious issues included whether the court of the joint state would have supremacy over those of the republics, and whether the joint state would have its own budget or be funded by subventions from the republics. There was little dispute over the competences of the joint state, however, as these had been largely determined by the Constitutional Charter.
In July 2002 there was a small advance; the two governments adopted an Economic Action Plan envisaging harmonisation between the republics in areas such as customs, foreign and internal trade and taxation, but between two essentially autonomous economic entities, with separate currencies and central banks. The Action Plan was also signed by federal Deputy Prime Minister Miroljub Labus, and welcomed by the EU Council of Ministers. A common customs tariff will be essential for any future negotiations on trade, including for a Stabilisation and Association Agreement, with the European Union.
In August, the Montenegrin and Serbian governments tried to repeat their success in the economic sphere and overcome the deadlock in the Constitutional Commission by taking the initiative to produce a draft Charter. It was reported that they were prepared, if necessary, to bypass the Commission altogether and present their draft directly to the parliaments of the two republics for approval. Crucially, according to the draft, the manner of elections to the joint parliament would be determined by the individual republics – a key concession by the Serbian government.
This initiative quickly came unstuck. The pro-Yugoslav Montenegrin parties rejected the draft, especially over the elections issue. The draft also faced opposition in Belgrade, both from the Democratic Party of Serbia (DSS) of FRY President Vojislav Kostunica and from elements within the ruling Democratic Opposition of Serbia (DOS) coalition. It was asserted that Serbian Prime Minister Zoran Djindjic had gone too far in his willingness to compromise with Djukanovic and had deviated from a previously agreed DOS draft.
Objections were also raised in Belgrade and Podgorica that the Serbian and Montenegrin governments were seeking to usurp the role of the Constitutional Commission. Some in Belgrade also complained that the draft made no mention of Vojvodina and Kosovo as autonomous provinces of Serbia. The upshot was that the DOS quickly backtracked from the positions agreed with the Montenegrin government, and proposed a new draft that specified direct elections. This was rejected by Djukanovic’s Democratic Party of Socialists (DPS).
A casualty of this squabbling was the Federal Republic of Yugoslavia’s accession to the Council of Europe. On 24 September 2002, its Parliamentary Assembly voted to recommend acceptance of the FRY (or Serbia and Montenegro, as the new union was to be known) as a member, pending finalisation of the Constitutional Charter. If all had gone well, the Council’s Committee of Ministers would have confirmed the decision on membership on 7 November 2002. However, no agreement had been reached by that date, and in the meantime the revelation that Yugoslav firms had been exporting military material to Iraq and Liberia in violation of binding UN Security Council sanctions, and a negative report from the international war crimes tribunal in The Hague (ICTY) had eroded some of the goodwill in Strasbourg. The Council of Ministers “noted with regret that circumstances at present do not yet permit the adoption of an official invitation to the Federal Republic of Yugoslavia to join the Council of Europe”. Compliance with ICTY was explicitly mentioned as a key issue.
In November 2002, a proposal by Djindjic’s Democratic Party (DS) opened up the way to a solution. It was that elections to the joint parliament should initially be indirect, but become direct in 2004. As Kostunica’s DSS and Djukanovic’s DPS appeared to accept this solution – a significant compromise by the latter – it seemed that the deadlock was broken. By 21 November, most participants had accepted the compromise.
However, divisions re-emerged among the Montenegrin negotiators. The leading pro-Yugoslav Montenegrin opposition party, the Socialist People’s Party (SNP), rejected the proposal, maintaining that only direct elections would be acceptable. Djukanovic’s allies, the SDP and the pro-independence Liberal Alliance of Montenegro (LSCG), rejected any compromise involving direct elections. There was, therefore, no majority for the proposal among the Montenegrin delegation. The DPS then startled the Serbian delegates by reiterating that in any case, the manner of electing the parliament should not be defined in the Constitutional Charter.
In a visit to Belgrade on 28 November 2002, the EU’s High Representative for Common Foreign and Security Policy, Javier Solana, persuaded Djukanovic to reverse his position and agree that the manner of electing the joint parliament, initially indirectly and after two years directly, would be stipulated in the Constitutional Charter. The news was greeted with bitterness by independence supporters in Montenegro, who felt that Djukanovic had once again caved into pressure from Solana. What seemed doubly incomprehensible to many was that he had done so in spite of enjoying a considerably stronger political position following the DPS-SDP coalition’s convincing victory in the parliamentary election on 22 October 2002. Many in Montenegro wondered what had enabled Solana to twist Djukanovic’s arm. SDP leader Ranko Krivokapic asserted that future EU assistance had been made conditional upon acceptance of the deal.
In any case, the Constitutional Commission adopted the Charter on 6 December 2002. The SNP overcame its objections over indirect elections to the joint parliament, having won assurances that the three-year moratorium on holding an independence referendum would run from adoption of the charter and not, as pro-independence Montenegrin parties had wanted, from the March 2002 signing of the Belgrade Agreement.
Further controversy followed over the details of a law on the implementation of the Charter, which specified how and according to what timetable the institutions of the new state would be set up, and how the institutions of the former federation would be wound up and their competencies transferred either to the new joint state institutions or to Serbian institutions. A key issue was the division of former FRY property between the republics and the joint state, especially property of the army. The pro-independence Montenegrin parties argued that the army should be granted the right to use property that would be held by the republics, while other parties said that the army should have its own property, as in the FRY. Rather than delay the Charter further, this issue was postponed. The DSS in Serbia, and the SNP’s smaller partners in Montenegro’s pro-Yugoslav coalition, the Serb People’s Party (SNS) and the People’s Party (NS), opposed the implementation law over this issue, but with the backing of the DPS and the SNP itself in Montenegro and the DOS coalition in Serbia, the law had sufficient support.
The law was adopted by the Constitutional Commission on 16 January 2003, and the FRY parliament proclaimed the Charter and implementation law on 4 February, after their passage by the Serbian and Montenegrin parliaments. The new Parliament of Serbia and Montenegro was duly elected by the Serbian and Montenegrin legislatures on 25 February, and met for the first time on 3 March, electing as Speaker Dragoljub Micunovic (who had previously been speaker of the FRY lower house). Svetozar Marovic, speaker of the Montenegrin parliament from 1994 to 2001, was elected President of Serbia and Montenegro on 7 March. Election of the five members of the Council of Ministers was postponed for four days because of the assassination of Serbian premier Zoran Djindjic on 12 March but was completed on 17 March.
