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The Badinter Arbitration Commission and the Partition of Yugoslavia

Published online by Cambridge University Press:  20 November 2018

Peter Radan
Peter Radan*
Affiliation:
Law Faculty, University of Western Sydney at Macarthur, Australia
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Extract

On 27 August 1991 the European Community (EC) resolved to establish a peace conference on Yugoslavia (the Brussels Declaration). Within the framework of the peace conference an Arbitration Commission was established for the purpose of resolving differences between “the relevant authorities” (not specifically identified). The Arbitration Commission consisted of five members, all being presidents of constitutional courts of EC members states and was headed by the French lawyer, Robert Badinter. The Arbitration Commission was subsequently endorsed by the United States (U.S.) and the then Union of Soviet Socialist Republics (USSR).

Type
Part III: International Reactions to Yugoslavia's Disintegration
Information
Nationalities Papers , Volume 25 , Issue 3: The Disintegration of Yugoslavia: Inevitable or Avoidable? , September 1997 , pp. 537 - 557
Copyright
Copyright © 1997 Association for the Study of Nationalities 

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References

Notes

1. For the text of the EC Declaration of 27 August 1991 see Focus, Special issue, (Belgrade), 14 January 1992, (hereafter Focus), pp. 128–129.Google Scholar

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35. Thus, the recognition by a significant power such as India was crucial to the ultimate success of the Bangladesh secession. Similarly the recognition by the EC of the former Yugoslav republics of Slovenia, and Croatia, and eventually Bosnia-Hercegovina and Macedonia, was critical to the success of these secessions. On the other hand the lack of widespread recognition of Katanga and Biafra was a major factor in the failure of these secession. In present times, the fact that the Turkish Republic of northern Cyprus, which seceded from Cyprus in November 1983, has only been recognised by Turkey, means that it cannot be seen as an independent state and member of the international community in general: Robert Jennings & Arthur Watts, eds, Oppenheim's International Law, I, Peace, 9th Edition (Longman Group UK Ltd, 1992), p. 130. Indeed the U.N. Security Council has formally condemned and declared legally invalid the proclomation of northern Cyprus: U.N. Security Council Resolution 541 (1983), para 2.Google Scholar

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39. For an explanation of the origins of German support for the breakaway republics see, Flora Lewis, “Bavarian TV and the Balkan War,” New Perspectives Quarterly, Vol. 11, No. 3, Summer 1994, pp. 44–47.Google Scholar

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43. For the text of the 27 August 1991 EC Declaration see Focus, pp. 128–129.Google Scholar

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46. For the text of the 17 December 1991 EC Guidelines on Recognition see Hurst Hannum, ed., Documents on Autonomy and Minority Rights (Martinus Nijhoff Publishers, 1993), p. 85. The other conditions in the Guidelines were acceptance of the rule of law, democracy and respect for human rights, guarantees for the rights of ethnic national groups and minorities, and compliance with international obligations in the domain of disarmament and state succession.Google Scholar

47. This was so despite the Arbitration Commission finding that Croatia had not met all the conditions for recognition set out in the Guidelines on Recognition.Google Scholar

48. For the text of Opinion No. 2 see International Legal Materials, Vol. 31, 1992, pp. 1497–1477.Google Scholar

49. For the text of Opinion No. 1 see International Legal Materials, Vol. 31, 1992, pp. 1494–1497. In its Opinion No. 8 in May 1992, the Arbitration Commission concluded that the process of Yugoslavia's dissolution was complete and that the former Yugoslavia “no longer exists.” For the text of Opinion No. 8 see International Legal Materials, Vol. 31, 1992, pp. 1521–1523.Google Scholar

50. For the text of Opinion No. 3 see International Legal Materials, Vol. 31, 1992, pp. 1499–1500.Google Scholar

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58. U.N. Secretary-General Javier Perez de Cuellar at the time urged Germany to reconsider its decision to recognise Croatia and Slovenia, correctly pointing out that recognition would provoke “the most terrible war in Bosnia-Hercegovina”: Misha Glenny, The Fall of Yugoslavia, The Third Balkan War, 2nd Edition (Penguin Books, 1993), p. 163.Google Scholar

59. Marc Weller, “The International Response to The Dissolution of the Socialist Federal Republic of Yugoslavia,” The American Journal of International Law, 1992, p. 606; Hannum, “Self-Determination, Yugoslavia, and Europe,” p. 69; Kamal S. Shehadics “Self-determination and the Breakup of States”, Adelphi Paper No. 283, The International Institute for Strategic Studies, 1993 (hereafter Shehadi, Ethnic Self-determination), p. 29. Thus, in the case of the Kurds of Turkey, the Turkish government has consistently rejected demands for a federation of Turkish and Kurdish republics on the ground that such a constitutional structure would be but a first step towards secession: Jeri Laber, “The Hidden War in Turkey,” The New York Review of Books, 23 June 1994.Google Scholar

60. The proposal as outlined by Milan Djukic, leader of the Serbian Peoples Party, is largely modelled on the constitutional structure for the Aaland Islands of Finland where the Swedish population has a considerable degree of autonomy pursuant to the Act on the Autonomy of Aaland, 1991. Djukic publicly outlined his views in an interview “Srpskih Je Skola u Zagrebu Bilu i Prije, Pa Nema Razloga Da Ih Opet Ne Bude!” Globus, 8 travnja (April), 1994. The concept of a federal structure within Croatia was also suggested by some opposition leaders in Croatia, such as Drazen Budisa, the then leader of the Croatian Social-Liberal Party.Google Scholar

61. See for example, “Hrvatska Je Drzava Konastantna Vrijednost, Interview: Veselin Pejnovic,” Danas, Nova Serija, Broj 87, Zagreb, 6 rujna (September), 1994; “Refederaliziranu Hrvatsku Ne Mogu Ni Zamisliti! Interview: Damir Zoric,” Danas, Nova Serija, Broj 89, Zagreb, 20 rujna (September), 1994; Tihomir Dujmovic, “Sto Nam To Govore,” Nedeljna Dalmacija, Broj 1222, Split, 30 rujna (September), 1994.Google Scholar

62. Jonathan Eyal, “Europe and Yugoslavia: Lessons From a Failure,” Whitehall Paper No. 19, Royal United Services Institute for Defence Studies, 1993, p. 48.Google Scholar

63. Afrikaner groups in South Africa have claimed that the Arbitration Commission Opinions support claims for an Afrikaner State separate from South Africa, based on the Boer Republics of Orange Free State and Transvaal: John Dugard, “Secession: Is the Case of Yugoslavia a Precedent for Africa?” African Journal of International & Comparative Law, Vol. 5, 1993, pp. 163–175. Similarly the Yugoslav secessions are claimed to support the recognition of Northern Cyprus from Cyprus: Zaim M. Nectagil, The Cyprus Question and the Turkish Position in International Law, 2nd Edition (Oxford University Press, 1993), pp. 231–233.Google Scholar

64. Alain Pellet, “The Opinions of the Badinter Arbitration Committee, A Second Breath for the Self-Determination of Peoples,” European Journal of International Law, Vol. 3, 1992, pp. 178–181 (hereafter Pellet, “The Opinions of the Badinter Arbitration Committee”), p. 181.Google Scholar

65. See Marc Weller, “International Law and Chaos,” Cambridge Law Journal, 1993, p. 8. He writes: “Overall, the generally very brief opinions of the Commission are likely to attract considerable and probably hostile scholarly interest. They are underpinned by the shallowest legal reasoning and do not appear destined to assist the international community greatly when addressing the potentially dangerous problem of secession in the future.”Google Scholar

66. In the case of Macedonia, its leadership in the months after the Slovene and Croatian declarations of independence sought to preserve Yugoslavia on the basis of a loose confederation of sovereign states, and opposed secession from Yugoslavia by Slovenia and Croatia: See memorandum to the EC entitled “The International Position of the Republic of Macedonia and its Status in the Yugoslav Community,” in Focus, pp. 153–156. In Bosnia-Hercegovina the Republican Assembly passed a resolution on the republics sovereignty but sought the continuation of a Yugoslav community provided such a community included both Croatia and Serbia. The vote on this resolution was boycotted by the Serbian Democratic Party (SDP). The SDP proposed (unsuccessfully) that the Assembly adopt a resolution that in the event that Croatia gained international recognition the three peoples of Bosnia-Hercegovina, namely the Moslems, Serbs and Croats, be granted the right to self-determination and that, pursuant to such a right, parts of the republic either join the remains of the Yugoslav State or form their own states: see “Documents of Parties in Bosnia-Hercegovina” in Focus, pp. 181–186.Google Scholar

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72. Some scholars have interpreted the Arbitration Commission statements on uti possidetis juris as part of a process of redefinition of the principle, so that it can apply where there is secession from a non-colonial state: T. M. Frank, “Postmodern Tribalism and the Right to Secession,” in Catherine Brolman, Rene Lefeber & Marjoleine Zieck, eds, Peoples and Minorities in International Law (Martinus Nijhoff Publishers, 1993), pp. 3–27, (esp. at p. 20). Pellet is of the view that uti possidetis juris “has today acquired the character of a universal, and peremptory norm”: Pellet, “The Opinion of the Badinter Arbitration Committee,” p. 180.Google Scholar

73. James Brown Scott, “The Swiss Decision In The Boundary Dispute Between Columbia and Venezuela,” The American Journal of International Law, 1922, pp. 428–429.CrossRefGoogle Scholar

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76. For background to the dispute and the role of the Court see Pierre-Marie Dupuy, “Fact-Finding In The Case Concerning The Frontier Dispute (Burkina Faso/Republic of Mali),” in Richard B. Lillich, ed., Fact-Finding Before International Tribunals (Ardsley-on-Hudson: Transnational Publishers Inc, 1992), pp. 81–93; John B. Allcock et al., Border And Territorial Disputes, 3rd Edition (Longman Current Affairs, 1992), pp. 221–227.Google Scholar

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79. International Court of Justice, Reports 554, 1986, p. 565.Google Scholar

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81. It should be noted that in the 1990s the issue of borders in Africa has emerged. The old colonial and now international borders are under siege for a variety of reasons, including nationalism. Many see changes to African borders in the future, with nationalism a key ingredient in that change. See Ali A. Mazrui, “The Bondage Of Boundaries,” in “The Future Surveyed,” Special supplement in The Economist, 11 September 1993, pp. 28–30. In a similar vein see Jeffrey Herbst, “Challenges To Africa's Boundaries In The New World Order,” in Journal of International Affairs, Vol. 46, 1992, pp. 17–30, where the author notes, at p. 24, that “[t]here is no reason to believe that many African citizens have a stronger commitment to their states than people in the Soviet Union or Yugoslavia did.”Google Scholar

82. Hurst Hannum, “Synthesis Of Discussion,” in Catherine Brolman, Rene Lefeber & Marjoleine Zieck, eds., Peoples And Minorities In International Law (Martinus Nijhoff Publishers, 1993), p. 335.Google Scholar

83. Hurst Hannum, “Rethinking Self-Determination,” Virginia Journal of International Law, 1993, p. 56.Google Scholar