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The Break-Up of Yugoslavia and International Law

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The Break-Up of Yugoslavia and International Law The Break-up of Yugoslavia and International Law Various secessionist movements seeking international recognition of statehood brought about the demise of the former Yugoslavia. Peter Radan’s book provides a critical analysis of this break-up from an international law perspective. Although international recognition was granted to the former Yugoslav republics of Slovenia, Croatia, Bosnia-Hercegovina and Macedonia, the claims of seces- sionist movements that sought a revision of existing internal federal borders were rejected. The basis upon which the post-secession international borders were accepted in international law involved novel applications of certain principles: primarily, self-determination of peoples and uti possidetis. Against the background of the historical development of Yugoslavia’s internal borders, this book traces the developments of these principles and their application to Yugoslavia by the Arbitration Commission established by the European Community. In addition, it charts the course of the various claims to secession within former Yugoslavia, and concludes that none of these provide a principled legal basis for holding that Yugoslavia’s internal administrative borders should have become post- secession international borders. Encapsulated within the central argument, the book covers several key issues in detail: • The meaning of ‘people’ • The uti possidetis principle • Yugoslavia’s constitutional and legal history • Yugoslavia’s secessions • The Arbitration Commission Opinions Students and scholars working in the fields of international law and political science will find this thorough and persuasive work both interesting and valuable. Peter Radan is a senior lecturer in law at Macquarie University, New South Wales, Australia. Routledge Studies in International Law 1 International Law in the Post-Cold War World Essays in memory of Li Haopei Edited by Sienho Yee and Wang Tieya 2 The Break-up of Yugoslavia and International Law Peter Radan The Break-up of Yugoslavia and International Law Peter Radan London and New York First published 2002 by Routledge 11 New Fetter Lane, London EC4P 4EE Simultaneously published in the USA and Canada by Routledge 29 West 35th Street, New York, NY 10001 Routledge is an imprint ofthe Taylor & Francis Group This edition published in the Taylor & Francis e-Library, 2003. © 2002 Peter Radan All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Radan, Peter The break-up of Yugoslavia and international law/Peter Radan. p. cm. Includes bibliographical references and index. 1. Secession–Yugoslavia. 2. Self-determination, National–Yugoslavia. 3. Yugoslavia–International status. 4. Self-determination, National–Former Yugoslav republics. 5. Former Yugoslav republics–International status. I. Title. KZ4255.R33 2002 341.26–dc21 2001019668 ISBN 0-203-16464-4 Master e-book ISBN ISBN 0-203-25883-5 (Adobe eReader Format) ISBN 0-415-25352-7 (Print Edition) Contents List of maps vii Acknowledgements ix Introduction 1 1 Nationalism and self-determination 8 2 The ‘nation’ as a ‘people’ 24 3 The principle of uti possidetis in Latin America 69 4 The principle of uti possidetis in Asia and Africa 118 5 The national question and internal administrative borders in Yugoslavia, 1918–91 135 6 The international response to and course of the Yugoslav secessions 160 7 The Badinter Commission: secession, self-determination and uti possidetis 204 8 Conclusion 244 Appendix: table of cases 254 Select bibliography 257 Index 262 Maps Map 1 The creation of Yugoslavia, 1918 137 Map 2 Yugoslavia’s banovia borders, 1929–39 140 Map 3 The dismemberment of Yugoslavia during World War II, 1941–46 144 Map 4 Yugoslavia’s internal administrative borders, 1946–91 150 Acknowledgements The research and writing of this book would not have been possible without the support and encouragement of my family and a number of my friends and col- leagues. All in their own way made the completion of this work possible. First and foremost, I wish to acknowledge the love, support, encouragement and understanding given to me by my wife Sybil and our children, Rade, Andrija and Aleksandra, over the six years that this book has been a part of our lives. Without them this book would never have been written. It is to them that it is dedicated. The support of two friends and colleagues needs to be acknowledged in partic- ular. This book has its origins in my doctoral dissertation completed under the supervision of Professor Ivan Shearer at the University of Sydney. In addition to a keen critical and expert eye, he provided the kind of guidance, advice and encouragement that made it a privilege to have him as my supervisor. To my col- league at Macquarie University, Associate-Professor Aleksanadar Pavković,I owe an enormous debt given the countless hours he spent discussing my work with me and providing valuable comments on the various drafts through which this book passed before it was completed. I also wish to thank the following friends and colleagues who made their own contributions to the final completion of this book: Dr Mile Bjelajac, Susan Fitzpatrick, Paul Joffe, Dr Margaret Kelly, Dr Thomas Musgrave, Libby O’Reilly, Petar Samardžija, Zoran Veljić and Ilija Vickovich. At Routledge I wish to thank James Whiting and his editorial team of Annabel Watson and Yeliz Ali for their support in publishing this work. Their professional- ism and efficiency have made it a pleasure for me to work with them. Parts of Chapters 6 and 8 of this book were previously published. I am obliged to the Editors of Melbourne University Law Review and East European Quarterly for permission to reproduce the following articles: ‘Post-Secession International Borders: A Critical Analysis of the Opinions of the Badinter Arbitration Commission’, Melbourne University Law Review, 2000, vol. 24, pp. 50–76; and ‘Yugoslavia’s Internal Borders: A Question of Appropriateness’, East European Quarterly, 1999, vol. 33, pp. 137–55. Peter Radan 4 January 2001 Introduction On 9 November 1989 the Berlin Wall came down. This event, more than any other of that tumultuous year, symbolised the end of the Cold War. The Cold War itself had been the defining aspect of the bi-polar international order that had emerged in the wake of World War II. With the passing of the Cold War a new inter- national order emerged. An important feature of this new international order is that ‘peace is less often threatened by conflicts between states than by friction, power contests, and the breakdown of order within states’.1 States today are more con- cerned with internal rather than external threats to their security and territorial integrity. Most of these internal threats come from nationalist groups seeking to secede, by force if necessary, and establish their own independent states.2 In what Allen Buchanan suggests is ‘the age of secession’,3 the right to self-determination of peoples as developed principally by the United Nations (UN), is almost univer- sally relied upon as the legal basis for secession. The reasons for the upsurge of nationalist secessionist claims are much debated. Some see nationalism as a response to the forces of globalisation. Others argue that nationalism has its own autonomous history and is not a response to globalisation.4 1 G. A. Craig and A. L. George, Force and Statecraft: Diplomatic Problems of Our Time, 3rd edition, New York, Oxford University Press, 1995, p. 146. See also H. Hannum, ‘The Specter of Secession, Responding to Claims for Ethnic Self-Determination’, Foreign Affairs, 1998, vol. 77, no. 2, p. 13. 2 A partial list of these conflicts, as of mid-1992, is found in M. H. Halperin and D. J. Scheffer with P. L. Small, Self-Determination in the New World Order, Washington, DC, Carnegie Endowment for International Peace, 1992, pp. 123–60. 3 A. Buchanan, ‘Self-Determination, Secession, and the Rule of Law’, in R. McKim and J. McMahan (eds), The Morality of Nationalism, New York, Oxford University Press, 1997, p. 301. See also T. M. Franck, ‘Postmodern Tribalism and the Right to Secession’, in C. Brölmann, R. Lefeber and M. Zieck (eds), Peoples and Minorities in International Law, Dordrecht, Martinus Nijhoff Publishers, 1993, pp. 3–4. 4 For a summary of the debate on this issue see I. Clark, Globalization and Fragmentation, International Relations in the Twentieth Century, Oxford, Oxford University Press, 1997, pp. 28–31. For more detailed statements of the competing views see J. L. Comaroff, ‘Ethnicity, Nationalism, and the Politics of Difference in an Age of Revolution’, in E. N. Wilmsen and P. McAllister (eds), The Politics of Difference: Ethnic Premises in a World of Power, Chicago, University of Chicago Press, 1996, pp. 162–83; A. D. Smith, Nations and Nationalism in a Global Era, Cambridge, Polity Press, 1995. 2 Introduction Whatever the truth of this matter may be, there is general agreement that the spec- tre of fragmentation of states as the result of nationalism and the quest for self-determination represent a major challenge to international order and security.5 The challenges posed by claims to self-determination stem from
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