May 26, 2003
"The coming apart of Yugoslavia between 1991 and 1992 has been referred to variously as the 'fall,' the 'disintegration,' the 'collapse' and the 'tragedy' of Yugoslavia. In reality Yugoslavia was dismembered through a selective and prejudicial international recognition policy of its internal 'republics'...Yugoslavia was a state created voluntarily in 1918 by its various nationalities and destroyed in 1991-92 by the West's ad-hoc recognition policy."
The conflicts that wracked the former Socialist Federal Republic of Yugoslavia (SFRY) during the 1990s -- and international responses to these crises -- have profoundly shaped the face of the post-Cold War order. The nature of Western intervention, not to mention its ultimate outcome, casts a long shadow on the heavily mediated and selective rhetoric of a "new (militarized) humanitarianism" and the promise it holds out of an increasingly just and law governed global order. In fact, for the peoples of the global South, the ascendancy of such interventionist impulses among the wealthy states of the global North increasingly threatens to undermine fifty years of widespread and progressive gains stemming from the process of decolonization and the national liberation struggles of formerly colonized peoples.
Although the roots of the conflicts in the former SFRY are complex -- and competing interpretations of the conflicts provide enough material for entire volumes -- this paper's reach is more circumscribed. I will limit myself to a critical examination of the European Community's (EC) early recognition policy with respect to the Yugoslav crisis by highlighting some of the tensions, dangers and inconsistencies that such a policy entails as a basis for the evolution of public international law and its significance for other poor, heavily indebted, and multinational developing countries.
Of course, as Croatian intellectual Dubravka Ugresic notes, "[t]he truth about Yugoslavia...is like a broken mirror: each fragment reflects its profound truth and its profound lie." In light of Ugresic's insight, this paper -- while uncompromisingly holding up a fragment of this "mirror" to the EC -- should not be construed as an attempt to pin blame on one party, absolve others of guilt or to point fingers and find scapegoats for the truly collective failure of the international community as a whole in preventing -- and in some cases even instigating -- Yugoslavia's continuing dismemberment.
In fact, it is hard to absolve any of the principle actors in the Yugoslav drama -- either indigenous or foreign -- from blame for the perpetuation of the conflict at a certain pivotal stage or for trying to extract political advantage from the suffering of others. That is to say with the exception of one group of course; i.e. the millions of innocent civilian casualties who have paid a heavy price in terms of their lives, homes, and piece of mind for the petty projects of local nationalist mafias and the foreign technocrats and military geostrategists who in turn stoked or "managed" such tendencies in the hope of successfully imposing their own "blueprints" on the region.
Misha Glenny, the BBC's correspondent for southeastern Europe, has noted that the relatively benign Cold War image of Yugoslavia and its peoples has been brutalized by the return of pejorative and dark stereotypes about the region over the course of the 1990s. As instability returned to the region in the late 1980s -- due to an escalating economic crisis and Yugoslavia's susceptibility to geopolitical shifts in Europe -- Glenny notes that,
"...generalizations about the peoples who inhabit the region, and their histories, were spread by media organizations that had long ago outlawed such clichés when reporting from Africa, the Middle East or China. The Balkans apparently enjoy a special exemption from the rules against stereotyping."Ten years of such distortions about the Balkans and the "character" of its peoples make it somewhat difficult to give an objective analysis that doesn't immediately fall into the ethnic stereotyping and "ancient ethnic hatreds" thesis of many analysts, or the simple dichotomies erected by journalists in order to squeeze a complex conflict into the format of a nightly newscast or a few lines of news print.
This paper, therefore, examines the underlying rationale of EC recognition policy more closely by subjecting these rationales to established standards of international law and by examining the already substantial debate on the nature of recognition. To this end, the essay is divided into three major sections, that will in turn explore: (1) competing theories of recognition and attempts at synthesis, (2) the EC's approach to recognition in Yugoslavia (including an examination of the validity of self-determination and uti possidetis as interpreted by the EC in guiding recognition policy), and, (3) a look at the ultimate implications of EC recognition policy for the self-determination of peoples and the continued independence and territorial integrity of other multinational states in the global South.
Legal and Political Dimensions of Recognition Policy:
Constitutive, Declaratory, and Syncretistic Theories of State Creation
Recognition is defined as,
"The free act by which one or more States acknowledge the existence on a definite territory of a human society politically organized, independent of any other existing State, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international Community."In its first opinion, handed down on November 29th 1991, the EC Arbitration Commission (ECAC) clearly stipulated that its own approach to recognition was to be guided by the notion that the "existence or disappearance of a State is a question of fact; that the effects of recognition by other States is purely declaratory." This "declaratory" interpretation of recognition must be examined more closely given the fact that the EC's own recognition policy effectively went a long way towards creating such "facts" by redefining the terms of statehood. The way in which narrow political, economic, and strategic interests served to structure the recognition process casts doubt on the legitimacy of the EC's recognition process as a precedent guiding public international law in the future (especially in terms of its contravention of UN policy towards Yugoslavia at the time, which emphasized an arms embargo, the unity of the State, mediation, and the avoidance of any unilateral moves that may destabilize the situation by both internal and external actors involved in the crisis).
However, before considering this specific case study, this section will first seek to explore the three principle schools of scholarly opinion regarding recognition theory that will help us colour our discussion of EC policy with respect to the SFRY. To this end we will examine in turn: constitutive theories of recognition, declaratory theories of recognition, and more "modern" approaches to recognition inspired by Hersch Lauterpacht's classic attempt to resolve the tensions inherent between the two theories.
Lassa Openheim offers a classic formulation of constitutive theory: "A state is, and becomes an International Person through recognition only and exclusively." Along these lines Lauterpacht argued that the constitutive conception of statehood "deduces the legal existence of new States from the will of those already established." In essence a state does not become a subject of international law until it meets with the approval of other states. According to Thomas Grant, this theory is in tune with the 19th century conception of international law as ius gentium voluntarium, which essentially posits that international law is nothing more than the voluntary and consensual behavior of states within the international system. Thus according to constitutive theory, recognition and by extension statehood are, both in theory and in practice, the sovereign prerogative of those states that are already recognized within the international system.
Grant shows how "recognition under the constitutive conception becomes a tool of statecraft...[or] a device of statecraft, a tool of Realpolitik." This feature of recognition, for instance, became particularly salient in Eastern Europe during the First World War when both Lenin and Wilson advocated national self-determination as a form of "military diplomacy" aimed at undermining the coherence of competing multinational Empires (including the Hapsburg and Ottoman empires). During the inter-war period and in the Second World War, German, Italian, and Japanese foreign policy establishments used recognition to establish military protectorates such as the Independent State of Croatia, Eritrea and Manchukuo (respectively targeting Yugoslav, Ethiopian and Chinese territorial integrity). In the post-WWII era such associations -- including the post-war examples of South Africa's "homeland states" of Transkei, Venda, Ciskei, and Bophuthatswana, not to mention Belgium's instigation of Katanga's secession from the Congo -- have brought into question the continued legitimacy of the constitutive theory of statehood through recognition policies.
As Grant recognizes, if recognition is constitutive of statehood and is to remain a sovereign prerogative of already existing members of the international community, than there is essentially no structural constraint to censure a state extending recognition when that recognition violates international norms, or inversely, by withholding recognition in cases where it should be forthcoming. According to Karen Knop, such an interpretation of recognition effectively allows existing states to raise or lower the bar of statehood to suit their interests. By either granting or withholding the acknowledgement of statehood, recognition policy can under such circumstance easily become a tool of aggression seeking to legitimate violations of sovereignty and territorial integrity. Brierly succinctly stated this point in his famous dictum that a constitutive theory of statehood becomes nothing more than "an attorney's mantle artfully displayed on the shoulders of arbitrary power...[and] a decorous name for a convenience of chancelleries."
Even if constitutive theory is taken at face value, by assuming that the sovereign prerogative of recognition is undertaken in good faith, the difficulties that the theory gives rise to are nonetheless substantial. If recognition is constitutive of statehood then, critics have asked, what exactly is the status of an entity that meets the objective criteria of statehood but that goes unrecognized by the international community (as in the case of revolutionary China or Russia)? Can such an entity, therefore, be considered a subject of international law -- i.e. does it enjoy international legal personality and the rights and duties that come with it (consider, for instance, the case of Macedonia which refused to cooperate with the sanctions regime imposed on the Federal Republic of Yugoslavia until it was granted recognition)? What happens when the international community is split on the issue of recognizing a state? Is it or is it not a state? What is the threshold of recognition beyond which it becomes a state (i.e. when it has been recognized by more than half of all existing states, by simple majority, two-thirds of the international community, or all states perhaps)? Do any laws regulate the relations between the state in question and those that do not recognize its legitimacy (consider Israel/Palestine)? Such serious conceptual and practical difficulties with constitutive theories of recognition have given rise to alternative interpretations of such acts.
Declaratory theory emerged as a reaction to the unprincipled implications and conceptual difficulties inherent in a strictly constitutive approach to recognition. Declaratory theory argues instead that statehood is independent of recognition; that the act of recognition by other states in the international system is purely declaratory. In terms of international public law, therefore, it argues that a state becomes a subject of international law the moment it meets the conditions of statehood notwithstanding its recognition by the international community. According to Kindred it is the declaratory position that is in accordance with the "majority of [legal] opinion" on recognition today.
Such an evolution of recognition theory was inspired by attempts to ensure that international law would be universal in application to all entities that meet the objective criteria of statehood within the system by insulating the objective achievement of statehood, from the subjective criteria of recognition. In light of these motivations, it is natural that a key component of declaratory theory is the establishment of objective criteria for statehood. In international law the Montevideo Convention comes the closest to stipulating such criteria. Scholars consider it to be the closest thing to an operative definition of statehood in the current international system. To this end Article 1 of the Montevideo Convention stipulates that a state "as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) a government; and (d) capacity to enter into relations with other states."
However, as skeptics like Grant have argued, this interpretation of recognition also runs into problems for two important reasons. First of all, the Montevideo criteria of statehood are rather minimal in scope and even then substantial controversy surrounds their application and interpretation. Such divergent readings of the Montevideo Convention are highlighted in Western Sahara's case, where a decade long controversy between Morocco and the United Nations has raged over what is meant exactly by the term "permanent population" (hence, effectively stalling a referendum on the territories' future status).
Secondly, even if the terms within the Montevideo Convention are clearly defined and no longer a source of controversy, many scholars argue that there is a need to define additional criteria that qualify a territorial entity for statehood in light of the evolution of international law since the Convention was drafted in 1933. According to Crawford, the paradigmatic case illustrating the fact that additional criteria establishing the objective basis statehood must be taken into consideration was Rhodesia's unilateral declaration of independence from Britain. Crawford claims that by 1965, the principle of meaningful self-determination had become an essential component of the international legal structure -- through documents like UN General Assembly Resolution 1514 -- which made the practical legal effect of Ian Smith's secessionist move meaningless in terms of Rhodesia's status under international law. Attempts to infuse statehood with additional criteria are referred to here as the "Montevideo Plus" criteria.
Suggestions for raising the bar for statehood and infusing the concept with additional normative criteria along these lines have in recent years included a widening range of requirements. These include the suggestions -- which have drawn varying degrees of support in terms of international law -- that a new state be: self-determining; democratic; established through peaceful means, legally, and by a negotiated settlement; independent; an observer of minority rights; be willing and able to observe international law; and "effective" with respect to the governance of the populations it contains.
Grant argues that current projects for the elaboration of "Montevideo Plus" criteria for statehood are -- while legitimately attempting to infuse statehood with considerations that better reflect changing normative standards (such as the right to self-determination and independence for colonial peoples and those suffering alien occupation) -- inherently suspect in that they again reinsert ambiguity into the processes of establishing and confirming the juridical personality of states within the current system. Accordingly Grant points out an essential paradox that plagues declaratory approaches to recognition,
"If, as a matter of fact, it is virtually impossible to declare when the fulfillment of criteria necessary for statehood has occurred, then the value of the declaratory model in pining down recognition to a set of objective criteria has been lost...[Under such conditions] Realpolitik can all too readily enter the process... [Thus, if] the problem is to find a model that reduces the Realpolitik aspect of recognition for which constituvism was criticized, declaratory doctrine is no solution."This paradox has led with declaratory doctrine among those interested in infusing recognition policy with both a firmer normative and juridical basis. What has emerged in order to replace such theories constitutes the topic of the following section.
Attempts at Synthesis and New Directions in Recognition Theory
Hersch Lauterpacht's 1947 book Recognition in International Law is widely recognized as a watershed in expert writings on the topic. In this work, Lauterpacht emphasizes the undesirability of both constitutive and declaratory theories of recognition. This leads him to consider instead the processes by which statehood is granted. Although skeptical of constitutive theory, Lauterpacht retains the notion that "statehood legally commences only upon the extension of recognition by existing states." Lauterpacht's approach was unique in that it marked a decisive shift in focus towards the very processes governing recognition. Thus, while Lauterpacht still upholds what is essentially a constitutive understanding of recognition, he rejects its unilateral tendencies in favor of collective processes that would inevitably bolster the normative and legal underpinnings of statehood.
Along these lines Lauterpacht, borrowing from Grotius, also challenges the assumption of jus gentium voluntarium inherent in traditional constitutive approaches to recognition and the legal lacunae such a view of international law gives rise to. To this end Lauterpacht establishes a clear distinction between entities meeting the objective criteria of statehood and the duties that come with this condition on the one hand, and the full enjoyment of the whole range of rights under international law that can only come at the end of a process of collective recognition by the community of states. This distinction, as later scholars have emphasized, is important in that it allows entities that do not enjoy international recognition to still be held accountable for ius cogens or peremptory norms of international law at the very least.
The sole question is no longer what the practical legal effect of recognition is on statehood, but instead what the appropriate mechanism is through which statehood is to be granted to new claimants? John Dugard has persuasively argued that the only forum currently approximating Lauterpacht's criteria of collective representativeness and legitimacy in the international arena is the UN General Assembly. As Dugard correctly argues, collective processes of recognition become less susceptible to the vagaries of Realpolitik and unilateralism the more they are bound to principles of compromise, diplomacy, and law. The only way to ensure the triumph of such principles is to embed recognition within broad-based institutions where they are necessary to maintain order.
If one understands "objectivity" as a social construct, Dugard's argument that the most appropriate forum for establishing objective criteria to govern recognition are those most representative of the international community seems eminently rational. In the system of states, such an approach would caution against regional efforts at "collective recognition" that stand in contradiction to more universal mechanisms for establishing statehood. If Grant's insights into the distorting effect of power on "objectivity" are incorporated into Dugard's analysis, one can conclude that attempts to define new criteria of statehood by powerful states through unrepresentative processes -- as in the EC's approach towards Yugoslavia -- seriously jeopardize the international system and the locus of law making authority within it. In effect this insight lies at the core of Lauterpacht's doctrine of recognition.
Redefining Self-Determination and Sovereignty:
EC Recognition Policy Towards SFR Yugoslavia
This section examines the adequacy of EC recognition policy as a legitimate precedent guiding future state practice in recognizing new states. It will be shown that far from establishing a noteworthy precedent that "rights" recognition discourse -- as intimated by Karen Knop -- EC recognition practice effectively represents a throwback to the arbitrariness of the days when powerful states saw recognition as a "high political act" aimed at raising or lowing the bar of statehood to suit their own interests. To this end this section is divided into three main parts, examining in turn: the changing nature of EC recognition policy; the role of the EC Arbitration Commission; and the contentious applications of the principle of self-determination and territoriality inherent in the opinions handed down by the Commission.
Changes in EC Recognition Policy
It is within the context of an escalating socio-economic crisis -- triggered by a liquidity crunch leading to neoliberal economic restructuring -- and the mounting nationalist tensions stemming from such facts that European policy makers waded into the Yugoslav crisis as open hostilities broke out in the spring of 1991. Sporadic and isolated clashes between German armed HDZ militias and the local Serbian populations of the Krajina, Backa, Slavonia, and Western Srem regions of Croatia -- including JNA intervention to initially separate these belligerents -- turned into open hostilities between secessionist, federalist, and extremist armed factions after Slovenia and Croatia's unilateral declarations of independence on June 25th, 1991. As the conflict escalated over the summer, an EC negotiating "troika" was sent to the region, and the basis for an EC Monitoring Mission (ECMM) to observe the implementation of the July 7th Brioni accords -- which put an end to fighting in Slovenia -- was agreed upon.
On August 27th, as mediation efforts stalled and a string of ceasefires collapsed, the EC's European Political Cooperation (EPC) Ministerial Meeting issued a "Declaration on Yugoslavia", including an initiative to convene a "peace conference and the establish[ment]...[of] an arbitration procedure" to resolve the crisis. The "peace conference" in question, became known as the European Community's Conference on Yugoslavia (ECCY) first convened at the Peace Palace in the Hague on September 7th, 1991 under the chairmanship of Lord Peter Carrington. The conference would bring together representatives of the EC, the UN's Special Envoy for Yugoslavia Cyrus Vance, the Yugoslav Premier Ante Markovic (on behalf of the Yugoslav federal government), the Presidents of Yugoslavia's six republics, and the republican representatives of the Federal Presidency. Independence for those republics that wished it was only envisaged within "the framework of a general settlement." Holland's Foreign Minister Hans van den Broeck laid down the EC position on October 4th 1991:
"It was agreed that the involvement of all parties concerned would be necessary to formulate a political solution on the basis of the perspective of recognition of the independence of those republics wishing it, at the end of the negotiating process conducted in good faith. The recognition would be granted in the framework of a general settlement and have the following conditions [i.e. a general arrangement arrived at by all republics on the future of the federation, protection for "minorities" within republican boundaries, and continued economic, security and legal cooperation]."The ECCY's position on this issue was confirmed by the Twelve during an EPC Ministerial Meeting held in Rome on November 8th 1991 (in which the prospect of recognition and independence of republics was again "envisaged in the framework of an overall settlement"). This position reflected the concurrence of Bosnia-Hercegovina, Montenegro, Serbia, and Macedonia with respect to a negotiated solution to resolving the Yugoslav crisis and preserving certain common institutions. In short, recognition of new states was envisaged only at the end of the negotiating processes established by the ECCY.
During the first stage of EC intervention in the crisis, the Community's policy was couched in accordance with fundamental principles of international law such as the non-recognition of forcible changes of international frontiers, refusing to recognize unilateral attempts at secession and acting largely as an honest mediator in the conflict between the republics of Serbia and Croatia through the "good offices" of the ECMM, which was eventually dispatched to Yugoslavia in the late summer of 1991. These were at least the aspects of EC policy up to December 1991 that were openly supported by the UN Security Council, the Secretary General, and the General Assembly. The deliberations of the UN Security Council reflect the view of most states in favor of preserving Yugoslavia's territorial integrity, respecting its independence, and urging restraint upon external actors from destabilizing the situation. Such sentiments were strongest within the Non-Aligned Movement that wanted to see the crisis resolved without jeopardizing Yugoslavia's unity (the SFRY had, after all, spearheaded the struggle for decolonization and non-alignment, it had hosted the NAM's first summit in 1961 held in Belgrade, and was effectively discharging its duties as the current head of the NAM in 1991).
Even at this early stage, however, there is a degree to which the EC's policy could already be seen as impinging on established norms of non-intervention and the principle that a domestic remedy first be sought. As ECCY documents show, the Conference frequently overstepped the role of honest mediator and sought to broker a broad-based settlement to the Yugoslav crisis that ignored constitutional provisions for the restructuring relations within the Federation. These domestic provisions, especially Article 283 of the 1974 Constitution, vested the non-republican based Federal Assembly with the sole competence of effecting constitutional changes and negotiating changes to Yugoslavia's borders. This competency was never derogated to the republican based Federal Presidency, which was the subsidiary organ privileged by the ECCY (even though it was the least functional federal institution). The substantial challenges to Yugoslav sovereignty are evident in both the draft and final texts of the ECCY's initial peace proposal, which unilaterally transferred responsibility for constitutional reforms within Yugoslavia into the international arena by marginalizing the Federal Assembly in favor of dealing with the ethno-nationalist republican leaderships elected in secessionist republics.
Under heavy German pressure this dimension of the Community's foreign policy was made more explicit at an extraordinary EPC Ministerial Meeting held in Brussels on December 16-17th 1991, and which eventually broke with the previous EC formula on resolving the crisis. Yugoslav republics that "wish to be recognized as independent States" were instead asked to submit applications to Lord Carrington, for consideration by the Arbitration Commission, within a week of the EC declaration (i.e. by December 23rd). Germany's unilateral recognition of Slovenia and Croatia on December 23rd - followed shortly by Austrian, Hungarian, Italian and Vatican recognition -- further undermined any remaining incentive for the secessionist republics to continue with UN supported efforts to resolve the crisis.
The Badinter Arbitration Commission
A key component of EC recognition policy in the Yugoslav crisis was the quasi-legalistic arbitration procedure established by the EPC's August 27 "Declaration on Yugoslavia" and the subsequent evolution of "the Arbitration Commission within the framework of the [ECCY]." The Declaration stipulates that the EC Arbitration Commission (ECAC) was to consider "differences" between "relevant authorities." According to the EPC Declaration, the ECAC was to be composed of "five members chosen from the Presidents of Constitutional Courts existing in the Community countries" and hand down "decisions" with respect to established points of conflict between the Yugoslav republics.
As Steve Terret notes in his detailed study of the ECAC, the choice of legal experts in constitutional law suggested that the original focus of the Arbitration Commission was to be on the internal political dynamics and domestic considerations animating the Yugoslav crisis. In his analysis Terret raises serious questions as to whether or not the Arbitration Commission ever seriously consulted the SFRY's 1974 Constitution in the formulation of its "Opinions," and whether or not all parties had acquiesced to its role in determining issues beyond its initially circumscribed competence -- as it eventually did in Opinions 4-15 -- which helps explain the increasingly contested legitimacy of ECAC with each decision made.
Furthermore, as Terret, Peter Radan, and Milenko Kreca have all argued, the Commission's entire status as a neutral arbitrating body with any legal significance under public international law is brought into serious question when one considers: the characterization of its rulings as "opinions" instead of the more traditional designation "awards" for an arbitration panel; the lack of transparency with regard to the selection procedure by which the arbitrators were selected (including the lack of arbitrators appointed by the disputing parties); the terse nature of the rulings; the lack of any record of "fact-finding" undertaken by the ECAC; the lack of transparency regarding the procedures through which its decisions were reached, the body of legal precepts upon which the decisions were based, and the omission of dissenting opinions or an indication of how the "decisions" were ratified (i.e. by simple majority vote or unanimity, etc.).
Nonetheless the ECAC's "Opinions" continue to draw considerable scholarly attention. Some, like John Williams and Colin Warbrick, have argued that the ECAC's findings effectively establish new international norms with respect to questions of self-determination, secession, succession, and the ruling principles designed to govern the process of "dissolution" of a state. Yet, each of its findings, their status under public international law, and even its legitimacy have been hotly contested and disputed by international legal experts since its first "Opinion" was handed down on November 29th 1991. Marc Weller has offered the following assessment of the commission,
"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."Despite such assessments, the ECAC's fifteen "Opinions" constitute the most recent -- although by no means the most internally coherent, correct or consistent -- quasi-legal attempt to underline issues governing the fundamental tension in international law between national self-determination and territorial integrity. For the purposes of this essay, we will only focus on Opinions #2-3, which were instrumental in helping legitimate the EC's radical reformulation of the right to self-determination and the norm of territorial integrity in order to justify its premature and arguably illegal collective recognition of Slovenia and Croatia on January 15th 1991.
Relevant Criteria of Recognition Picked up on by the EC
In this section we will examine two of the most controversial aspects of EC recognition policy with respect to Yugoslav republics seeking to unilaterally secede from the federation. These concern the ECAC's re-interpretation of the right to self-determination and the sanctity of borders as understood under public international law. Although there exists enough critical scholarship on the commission to fill entire volumes, below we will only briefly consider these two areas of contention, which effectively bring into question the entire validity of the ECAC's rigid and categorical conclusions (as well as the competence of the judges that sat on the panel).
Self-Determination of Peoples
The concept of self-determination forms one of the principle cornerstones of modern international law. Article 1 (2) of the UN Charter clearly stipulates that this is a right of "peoples." Such a definition of self-determination conflicts with Article 2 (4) of the UN Charter which guarantees the territorial integrity of States. This tension has been resolved in state-practice over the past fifty years by establishing a distinction between "external" and "internal" forms of self-determination. Legal opinion now converges on the fact that the right to "external" self-determination belongs only to those peoples that are either under "colonial rule" or "foreign occupation and alien domination." Absent such domination, the right to self-determination does not include the right to unilateral secession or the right to fragment existing state polities. This interpretation is confirmed in documents like UNGA Resolutions 1514 and 1541, the ICJ, the OAU Charter, repeated statements by the Non-Aligned movement, "The Declaration on Friendly Relations," and in the Helsinki Final Act (to name only a few such instances). The last two acts are particularly important, for while they both explicitly recognize a right of peoples to self-determination, they clearly reaffirm the primacy of the principle of territorial integrity for states.
However, as the Supreme Court of Canada pointed out in its ruling on The Secession of Quebec, there exists in the writings of some legal experts a third-class of conditions under which national self-determination may be exercised. This situation arises when a "people" is denied meaningful self-determination within an already established territorial unit. However, as the Supreme Court of Canada points out, nowhere can this right be interpreted as legitimating a unilateral declaration of independence nor does the majority of claims for self-determination meet the threshold that would be required if such a norm would become operative.
In the Yugoslav context this is especially true in the case of the Slovenian and Croatian peoples, who were mostly concentrated in the richest republics of the federation; disposed, on a per capita basis, of the greatest gross personal income in the Yugoslav federation; enjoyed equal rights with the other republics and other constituent "peoples" in the federation (notwithstanding the choice of republican leaderships in these republics to boycott federal institutions when their proposals were rebuffed by the concurrent will of other federal units); and were in fact traditionally over-represented within most Federal institutions of post-WWII Yugoslavia, including the Federal Assembly, the Federal Executive Council, the Federal Premiership, the Foreign Ministry, the Senior Staff of the Yugoslav National Army, and the Executive Committee of the League of Communists of Yugoslavia. Even during the secessionist crisis, Croats and Slovenes fulfilled principal roles in the federation, including the position of Federal Premier (Ante Markovic), the President of the Federal Presidency (Stipe Mesic), and the Foreign Affairs Minister (Budomir Loncar).
In its "Opinion" that specifically deals with the right to self-determination, it is interesting to note that the ECAC only considered the politically charged and highly leading questions posed by Lord Carrington as to whether or not the "Serbian population in Croatia and Bosnia-Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination." Such a formulation of the question by Carrington, allowed the ECAC to circumvent the question that was actually posed by Serbia. The question as Serbia had initially formulated it actually read: "Who is entitled to the right to self-determination from the standpoint of public international law: a people or a federal unit, i.e. is the right to self-determination a subjective, collective right or the right of a territory?"
Note that Carrington's formulation allows the ECAC to circumvent the question posed, by implicitly beginning from the premise that Croatia and Bosnia were already independent entities. According to Kreca, the way in which the questions were transmitted seemed to violate standards of arbitration contained in The Hague Convention (1907), the Vienna Convention (1978, 1983), and in international customary law (he considers the example of the Åland Islands arbitration between Sweden and Finland undertaken by the League of Nations as a relevant early 20th century example).
In Opinion #2, the ECAC ignores the domestic Constitutional implications of the term "constituent peoples" in the Yugoslav context. This oversight highlights the ECAC's ignorance of local constitutional nuances. In effect, Opinion #2 effectively legitimates the de jure and de facto demotion of the Serbian people -- in Croatia and Bosnia respectively -- from the status of constitutive peoples in the Federation, with a right to self-determination including the right to choose whether or not to live inside or outside of Yugoslavia, to the status of minorities whose right to self determination was limited to the personal right "of every individual [to] choose to belong to whatever ethnic, religious or language community he or she wishes."
Although the ECAC's definition of self-determination as an internal right to be exercised within existing State frontiers is essentially correct, it is unclear why this principle wasn't applied to Slovenes, Croats, and Bosnian Muslims, within the context of a Federal Yugoslavia, but was instead only applied to Serbs in the context of territorial entities delimited by internal frontiers that largely have no status under international law. In effect, if the right to self-determination is to be extended to the citizens of existing territorial units, then why wasn't this right to decide on the future of a common state given to all Yugoslavs?
Justifications subsequently offered by EC policy makers, ECAC members, and Western media outlets with respect to such inconsistencies break down under closer scrutiny. Such justifications include the argument concerning the alleged failure of federal structures and the recourse to force by the Yugoslav People's Army (YPA) in order to initially stem the proliferation of illegally constituted armed formations in the secessionist republics. The first argument is spurious from the perspective of public international law. Somalia, for instance, was subjected to a much larger degree of central government breakdown and active attempts at secession at the same time as Yugoslavia, yet the international community to this day hasn't acquiesced to its territorial division. Furthermore, as the Supreme Court of Canada noted in its ruling on the Secession of Quebec, constitutional crises do not in and of themselves constitute a justification for the exercise of external self-determination.
With respect to the use of force, Raju Thomas points out that the use of force to suppress externally armed secessionist movements unquestionably falls within the sovereign prerogative of states under the current international system. While such a prerogative does exist, it should be noted that it in no way translates into a carte blanche for the violation of ius cogens norms or ius in bello restraints on military operations. It would seem instead that egregious violations of human rights are increasingly being accepted by many scholars, although not without substantial controversy, as even providing a justification for "humanitarian intervention."
While fighting in Croatia had clearly taken a terrible toll on civilians living in the republic by January 1992, it is not so clear that the violence was as one sided when the EC decided to officially recognize both Croatia and Slovenia on January 15th 1992 as media accounts at the time suggested. In fact, approximately seventy out of the hundred or so casualties of the limited fighting in Slovenia were in fact unarmed JNA conscripts massacred in their barracks by Slovenian Territorial Defense Forces. Even more significant are Yugoslav Red Cross and ICRC figures for the refugee situation in the SFRY -- compiled in January 1991 -- which in fact suggest that civilians on both sides of the conflict were equally victimized by the belligerent parties in Croatia. However, even if the violence was completely one sided in nature -- i.e. solely perpetrated by Federal forces -- it is interesting to note that Article 3 of the "Additional Protocol to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)" stipulates in Article 3:
"1. Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.Such a provision clearly precludes "humanitarian interventions" and the fragmentation of states on the basis of upholding human rights.
Finally, media-generated justifications for EC recognition policy and duplicity were often based on the crude assumptions concerning the collectively retrograde nature of "the Serbs," who had somehow forfeited their rights under international law. While such a justification may suit policy makers and publics inclined to racism, such justifications thankfully have no status under international law. Collective punishments are fortunately not legally sanctioned, (although there was a real sense in which many advocates of "human-rights" favored such a policy with respect to "the Serbs").
There effectively exists no way for an entire "people" to forfeit their right to self-determination for actions that under customary international practice are the sole responsibility of individual actors. The doctrine of individual responsibility for crimes committed in warfare, however, does not absolve "peoples" of the need to reflect and consider past injustices committed in their names, but it certainly does foreclose the possibility of systematically denying the rights or humanity of such "peoples" (i.e. which was the dominant attitude displayed towards "the Serbs" among policy makers in Washington, Brussels and Bonn during most of the 1990s).
Uti Possidetis Juris
Lord Carrington also altered the third question posed by the Republic of Serbia to read instead: "Can the internal boundaries between Croatia and Serbia and between Bosnia-Herzegovina and Serbia be regarded as frontiers in public international law?" In fact the question actually posed by Serbia was more straightforward: "What is the status of internal or administrative frontiers and of external or state frontiers from the aspect of universal international law, the Final Act of Helsinki and the Paris Charter?" Carrington's reformulation of the question effectively allowed the ECAC to once again circumvent the important question regarding the status of the SFRY's international frontiers from the perspective of international law.
In recent years, a substantial amount of North American and European legal scholarship has attempted to infer a legal right or duty to violate the principles of territorial integrity enshrined in international treaties in the wake of EC and NATO economic, military and diplomatic interventions in the Balkans. Yet, it is of fundamental importance to note that not a single existing treaty, convention, or document of universal scope can today be interpreted as conferring a right or duty upon states to fragment existing states if they violate subjective or even objective standards of human rights.
The ECAC provided a justification for the EC's privileging of Yugoslavia's internal administrative territorial status quo, over and above the SFRY's internationally recognized frontiers, when it invoked the principle of uti possidetis juris, through a selective interpretation of the ICJ's ruling in the Frontier Dispute Case (Burkina Faso v. Mali) and by implicit reference to the stability of borders doctrine that is evident in rulings like the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) or in the Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v. Chad).
The major flaw with respect to the ECAC's application of both these principles is that neither of them applies to the status of internal administrative boundaries or within non-colonial settings. The Commission is guilty of selectively quoting from the ICJ's ruling by omitting the reference to an "administering power" that is contained in the last portion of the ICJ's text quoted by the ECAC. The ICJ decision, in effect, was designed to establish the applicability of uti possidetis juris -- originally exercised in the context of borders established by colonial powers in Latin America -- as a general principle that also applied to the African context of the case it was hearing (involving a frontier dispute between Burkina Faso and Mali). As both Steven Ratner and Peter Radan point out, the decision in the Frontier Dispute Case repeatedly refers to uti possidetis occurring within the context of decolonization. Furthermore, as Radan illustrates, the "stability of borders doctrine" as stipulated in all ICJ decisions on the matter clearly and explicitly refer to the sanctity of international borders and never mention the status of internal borders as being "within the ambit of international law." In effect, Radan claims that for the purposes of public international law, internal administrative boundaries are essentially meaningless.
In fact, a proper application of the principle of uti possidetis juris to the Yugoslav case should have in fact confirmed the sanctity of Yugoslavia's external administrative boundaries, which were the product of two hundred years of successive national liberation struggles of Yugoslav peoples against colonial rule and foreign occupation. Yugoslavia's borders were established by the Treaties of Saint-Germain-en-Laye (1919), Neuilly-sur-Seine (1919), Trianon (1920), and Rapallo (1920). These borders were in fact doubly sanctified by the principle of uti possidetis juris as the result of another successful, multiethnic, and mass-based Partizan anti-fascist struggle against German, Italian, Hungarian and Bulgarian occupation and dismemberment during WWII. Considering the fact that former colonial and occupying powers like Germany, Austria, Hungary and Italy were at the forefront of pushing for Yugoslavia's dismemberment, a proper application of uti possidetis juris should have been strictly applied in order to maintain the territorial integrity of Yugoslavia's frontiers achieved at independence absent a general internal settlement. In fact, the Frontier Dispute Case establishes this as a general principle of international law for countries that have gained independence from colonial or foreign domination applicable within all systems of international law, including the European system.
As if aware of the shaky ground it stood on in terms of public international law, the ECAC -- in what would be its only reference to the constitution of the SFRY -- uses selective quotations to infer a basis for the integrity of internal frontiers within Yugoslavia's own constitution. To this end the Commission argues that the second and fourth paragraphs of Article 5 of the SFRY constitution stipulate, "that the Republics' territories and boundaries could not be altered without their consent." This is again only partially correct, as the ECAC's interpretation conveniently ignores the equally relevant provisions of Article 5 contained in the first and third paragraphs, which unambiguously state:
"1. The territory of the Socialist Federal Republic of Yugoslavia is an indivisible/unified (i.e. "jedinstvena") and consists of the territories of its socialist republics. [...]The principle of territorial integrity, measures to preserve it, and the mechanisms to effect changes to both internal and external boundaries of the SFRY are again outlined in Articles 237, 238, 239, 240, 244, 281 and Article 283 of the SFRY's Constitution.
The principles of EC recognition policy that were based on such faulty legal reasoning constitute an egregious violation of the principles of non-intervention that are enshrined in numerous international instruments. The "Declaration on Friendly Relations," for instance, explicitly imposes a duty upon states "not to intervene in matters within the domestic jurisdiction of any state," and to "refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State" (as was the case with the respective policies of the EC and the German intelligence services with respect to the SFRY).
Prohibiting "Diplomatic Aggression"? Strategies of Resistance for the Global South
While the EC's approach to recognition has been celebrated by authors such as John Williams, who suggest that the lack of legitimacy of the Yugoslav state was a justification for recognizing its dissolution, others like Knop have been more skeptical. While Knop sees the "righting" of recognition discourse as a positive development, she admits that a degree of "Realpolitik intrudes on [the] actualization" of such policies, and correctly argues that "[t]o proclaim the triumph of human rights through recognition in regions ravaged by civil would be a macabre distortion of reality."
Raju Thomas suggests that the implications of EC recognition policy with respect to Yugoslavia are even more dangerous. If taken at face value, they establish a dangerous precedent that harks back to the 19th century discourse in which colonized lands were often treated as res or terrus nullius in terms of public international law. The modern equivalents of such doctrines are the concepts of "failed" and "rogue states," which are used by European and North American policy makers to intervene in order to restructure the institutional and territorial status-quo in geopolitically significant regions so designated.
Independent States or NATO's Balkan Bantustans?
In his lengthy and detailed critique of the background to EC recognition policy, Michel Collon has argued convincingly that by upholding the principle of narrowly based ethnic self-determination above that of multinational states, the EC essentially acquiesced to the logic of "ethnic-purity" implicitly and explicitly expressed in the discourses of Balkan nationalist factions. During the Yugoslav republican elections held in 1990, pro-Federalist parties attracted more than 50% of votes when results are indexed nationally. This figure may be even higher if one considers the fact that ethno-nationalist and secessionists parties paid lip-service to the idea of Yugoslavia in order to attract the votes of those who still identified with a Yugoslav community but wanted to either lodge a protest vote against "communism" or in favor of concepts like "democracy" and "Europe." In effect, as Collon argues, the "democratic" legitimacy of ethno-nationalist positions is further brought into question by the ambiguous nature of the wording of the referenda and resolutions that were adopted within individual republics (all of which left association with a future Yugoslav community as an open possibility).
Given such observation, Collon reasonably asks what right the ECAC had in proclaiming that Yugoslavia "was in the process of dissolution" when the majority of its population had expressed the desire to live in a common state? Instead of confirming the self-determining will of most Yugoslavs to live in such a state, EC policy effectively conspired with nationalist propaganda and media-saturation to undermine the continued legitimacy of the Yugoslav idea. The West's willingness to back nationalists-turned-"democrats" on all sides, or those who spouted the rhetoric of market reform -- even at the expense of Yugoslav unity -- came to the detriment of inter-ethnic solidarity throughout the region and the eventual disruption of 24 million human lives.
Today the dissolution of the former Socialist Federal Republic of Yugoslavia is considered a fait accompli. The region continues to be progressively polarized and divided into increasingly atomized, ethnically based, and largely impoverished constituencies, almost all of which are occupied by NATO forces, from: Slovenia, Croatia, Eastern Slavonia, Herceg-Bosna, Muslim-Croat Federation, Republic of Srpska, Serbia, Montenegro, Voivodina, Sandjak, (Albanian) Kosovo, (Minority Enclaves) Kosovo, (Albanian) Macedonia, and (Slavic) Macedonia. This process is further deepened by continued Western support for "pragmatic" nationalists who adhere to the neoliberal program for the region as envisioned in institutions like the International Conference on the Former Yugoslavia (ICFY), the Southeast European Community Cooperation Initiative (SECCI) and in documents like the Stability Pact for Southeastern Europe.
In its ruling on the Succession of Quebec, the Supreme Court of Canada argued that the establishment of new states, through illegal procedures that are prohibited under international law -- such as a unilateral declaration of independence, for instance -- cannot be said to become retroactively "legal" even if the "effectivity principle" is applied to such cases. Subsequent recognition of such "facts" by the community of nations, under the terms of the "effectivity principle," still "does not support the more radical contention that subsequent recognition...could be taken to mean that secession was achieved under colour of a legal right." If the "effectivity" principle is applied to the successor states and quasi-states of the SFRY, none of the newly emergent entities can be said to be fully self-determining or independent in political, economic or military terms. Most of the governments in the region are heavily aid dependent, susceptible to a range of political conditionalities, and in fact two former Yugoslav federal units are subjected to governance structures in which ultimate executive authority is vested in "international administrators" -- that is to say Bosnia's Austrian High-Representative Wolfgang Petrischich, and Kosovo's German UNMIK Administrator Michael Steiner.
The successor states of the former SFR Yugoslavia -- with the notable exception of Slovenia but including other "post-communist" states in the region like Albania, Bulgaria and Romania -- are increasingly coming to resemble a string of impoverished, non-self-governing, ethnically polarized Balkan Bantustans under NATO tutelage. This is a far cry from the self-determining, prosperous, and independent states the peoples in the region were told they would inhabit -- through the seductive statements of local nationalists-turned-"democrats," Western technocrats and postmodern intellectuals -- if they simply replaced one set of ideological formula (i.e. "workers self-management" and "Brotherhood and Unity") with another ("democracy"; "European integration"; "the West"; "post-modernity," etc.).
The characterization of the new territorial realities as constituting a string of "Balkan Bantustans" is apt if on considers the fact that the States most consistently opposed to Yugoslavia's initial dismemberment, and the repeated and continued attempts by the NATO Alliance to further fragment whatever is left of it, are the so-called southern African "Front Line States" that spearheaded the struggle against apartheid.
In line with this reading, Raju Thomas notes that Western intervention in Yugoslavia's internal affairs predates the outbreak of large-scale and violent inter-ethnic hostilities in the region. He argues that "neither Serbian nor Croatian nationalism was sufficient to destroy Yugoslavia" and -- in an echo of Collon's arguments -- underlines how support for existing, non-nationally based federal structures could have provided an alternative to resolving the crisis. According to Thomas, "the real 'aggression' in Yugoslavia began with the Western recognition of Slovenia and Croatia" and their unilateral declarations of independence." He continues,
"In 1991, a new state recognition policy proved to be an inventive method of destroying longstanding sovereign independent states...Disintegration and war in the former Yugoslavia were caused mainly by the hasty and reckless Western policy of recognizing new states from an existing longstanding state. Indeed, the Western powers dismembered Yugoslavia through a new method of aggression: diplomatic recognition."The implications for smaller and poorer countries are evident,
"When several rich and powerful states decide to take a sovereign independent state apart through the policy of recognition, how is this state supposed to defend itself? There can be no deterrence or defense against such state destruction."A cursory glance at the "lessons" drawn from Yugoslavia's dismemberment by a number of governments presiding over multinational states in the global South suggests that far from instilling a new-found respect for "minorities," such policies have effectively contributed to bolstering hard-line positions on inter-communal tensions. Thomas notes that "diplomatic aggression" has forced many Southern states to shift away from contemplating federalist arrangements based on anything resembling ethnic identity -- as in Nigeria, Sudan, India, Indonesia, or the DR Congo, for instance. Thomas points out that this trend has been particularly pronounced in Chinese and Russian military establishments with respect to secessionist regions, and that it has even served as a rationale for the proliferation of nuclear weapons in South Asia.
It is sad that on the whole, the logic of the EC's recognition criteria would seem instead to legitimate the unitarist and uncompromising approaches of states like Turkey or Zviad Gamzakurdiah's Georgia in dealing with secessionist insurgencies in areas of these countries populated respectively by ethnic Kurds and Abkhazians or Ossetians. In a perverse way, Turkey's denial of domestic constitutional rights to its Kurdish populations, wholesale denial of their language and cultural identity, and complete refusal to countenance anything resembling territorial autonomy, in particular, would seem to protect the territorial integrity of that state from any attempts by the EC to "right" recognition policy.
There is a degree to which all considerations with respect to recognition policy may seem somewhat superfluous in the broader context of global power relations. That is to say, Turkey isn't bombed or sanctioned because of any particular form of governance it adopts but more precisely because it is a crucial ally of powerful states and a geostrategically "pivotal" area for the emerging "Trans-Atlantic Community's" central military wing -- i.e. the NATO alliance. Therefore, its brutal domestic counterinsurgency policies and human rights abuses will continue to go unpunished, Kurdish demands for self-determination in Turkey will be ignored, while its occupation of an ethnically cleansed northern Cyprus will continue to draw little more than verbal rebukes from its allies.
Of course this would all change tomorrow if an Islamist government, hostile to the West, came to power in Ankara. Surely a better model, in terms of recognition policy, is available than the EC's approach which was heavily mediated by political, economic, and military interests. There is a pressing need to consolidate instead the primacy of truly universal mechanisms for state recognition in a way that establishes solid foundations for meaningful exercises of both the internal and external self-determination of peoples as guaranteed under international law.
The proper question is not, as we've seen, one of devising an objective definition of statehood, trying to establish the proper criteria for achieving recognition, or even employing the most appropriate mechanism for granting statehood to those peoples that are entitled to it. The central question that must continuously remain in focus instead is how international institutions and actors can attenuate disparities of power, diffuse such differentials between states, and bind the system's most powerful actors within the framework of a law-governed global society.
Ultimately, established standards of transparency, accountability, and representativeness should be applied with equal force towards the institutions and states that wield effective power in today's world and the same rigor that such standards are already applied with respect to the governance structures of developing countries. In a semi-anarchical world lacking a legitimate hegemon, the success of international legal norms will inevitably depend on the ability of states to develop processes that can foster confidence and security among all members of the international community. That is to say, hope lies in a world where the "security" of one does not necessarily come at the expense of the security of others.
As Dugard has argued, the United Nations, although by no means perfect, comes the closest to meeting fundamental standards for broad based and representative decision making and legitimacy currently available. The General Assembly in particular serves as a powerful antidote to the one-sided unilateralism or narrowly defined right to reinterpret international law according to the wishes of Northern states (a trend repeatedly manifested in attempts to deal with the Yugoslav crisis over the course of the 1990s). If the exercise of meaningful internal and external self-determination is to become the central component of statehood in the 21st century, emphasis must be placed on devising methods in which such a right will not be mediated and distorted by the interests of those holding disproportionate military and economic power in today's world. The tragedy of Yugoslavia's dismemberment should serve as a powerful lesson to all with respect to the West's alleged ability to effectively manage crises and bring about optimal solutions through selective and prejudicial policies. In terms of recognition policy this means extreme vigilance with respect to voices in the West urging the further fragmentation of other large, multiethnic, geostrategically important and heavily indebted states in the global South.
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FOOLS' CRUSADE: Yugoslavia, NATO and Western Delusions, by Diana Johnstone (Book Excerpt)
The Balkans and Yugoslavia on Swans
Konstantin Kilibarda is currently completing a Collaborative MA in International Relations and Political Science at the University of Toronto (U of T), Canada. He is very involved in organizing with anti-imperialist causes in Toronto and contributing to AGITATE, a radical U of T student organization hosted by Victoria Students for a Critical Consciousness. This essay was written in May 2002 as a legal paper for the University of Toronto; it was duly footnoted with over 120 notes and references.
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