Српска наука данас / Serbian Science Today 2016 ▪ Vol. 1 ▪ No. 3 ▪ 369–382 Друштвене науке / Social sciences UDC 341.222(497.1) Оригиналан научни рад / Original scientific paper

Нерешена гранична Unresolved border питања између issues between Србије и држава сукцесорки and successor states бивше Југославије of the Former Yugoslavia

Душко С. Димитријевић, Duško S. Dimitrijević, научни саветник Professorial Fellow Институт за међународну Institute of International политику и привреду Politics and Economics Македонска 25, 11000 Београд Makedonska 25, 11000 Beograd [email protected] [email protected]

Abstract Key words: In this study, the author analyzes the consequences of the principle of state borders, successor state uti possidetis in relation to the delimitation between Serbia and successor of the Former States of Former Yugoslavia. The author believes that the unresolved border Yugoslavia (SFRY), issues mainly caused by the opinion of the so called Badinter Arbitration principle of uti Commission, according to which the internal administrative borders between possidetis, Serbia, the Yugoslav republics, despite its obvious legal inconsistencies, declared for delimitation international borders on the basis of principle uti possidetis. The justification for such an opinion of the Arbitration Commission is found in the broader interpretation of the judgment of the International Court of Justice regard- ing the delimitation of Burkina Faso and Mali. However, this case cannot be compared with the “Yugoslav case”, because the “Yugoslav case” caused far more complex consequences in relation to the consequences that arose during the emergence of new independent African States in the process of decolonization. This conclusion is also indicated by the author himself, who is investigating the possibilities of international legal regulation of all out- standing border issues.

Рад примљен: 23.9.2016. Paper received: 9/23/2016

Рад прихваћен: 9.10.2016. Paper accepted: 10/9/2016

Duško S. Dimitrijević ▪ Unresolved border issues between Serbia and successor states of the Former Yugoslavia 369 Српска наука данас / Serbian Science Today 2016 ▪ Vol. 1 ▪ No. 3 ▪ 369–382

Сажетак Кључне речи: У овој студији анализиране су последице принципa uti possidetis у државне границе, државе сукцесорке односу на разграничење између Србије и држава наследница бивше бивше Југославије Југославије. Аутор сматра да су нерешена гранична питања углавном (СФРЈ), принцип uti проузрокованa мишљењем тзв. Бадинтерове арбитражне комисије possidetis, Србија, према којој су унутрашње административне границе између југосло- делимитација венских република, упркос својим очигледним правним недостацима, проглашене за међународне границе на основу принципа uti possidetis. Оправдање за такво мишљење Арбитражне комисије налази се у широ- ком тумачењу пресуде Међународног суда правде у случају разграни- чења Буркине Фасо и Републике Мали. Међутим, овај случај не може се поредити са „југословенским случајем“ будући да је „југословенски слу- чај“ изазвао много сложеније последице у односу на последице које су настале током настанка нових независних афричких држава у процесу деколонизације. На овакав закључак указује и аутор овога рада који ис- тражује могућности међународног правног регулисања свих отворених граничних питања.

Introduction international law declines to apply the gener- al rule regarding them as internal boundaries By applying the rule resulting from the in- that up to the succession were subject to the ternational practice, the entry into force of regime of the public law of the former State. succession of States does not itself bring into With cessation of the internal legal order and question the internationally recognized bor- its effectiveness on the territory affected by ders [1]. Moreover, it is a general internation- succession, its administrative boundaries also al rule that as for the international borders of cease to exist. The contemporary development the Predecessor State, new States are obliged to of international law and the law of succession respect them on the basis of continuity in ex- of States that regulates legal consequences of ercising authorities within the territorially rec- transition of States in space and time have ognized borders and not on the basis of suc- brought about substantial changes to such a cession of treaty relationships [2]. It is through conception. Indicative of this is just an example the process of border delimitation that inter- of succession of the Socialist Federal Republic national law establishes an objective situation, of Yugoslavia, which represents a fundamen- which imposes an imperative obligation to 1 tal shift in terms of application of the principle successor States in case of succession. Excep- of inviolability of the existing administrative tions to the rule are possible only if a consen- boundaries at the time of the independence of sus is reached [3]. the new States. Therefore, I believe that before Rising of the question of borders can be the concrete analysis of unresolved border is- significant for functioning of successor States sues between Serbia and the successor States in case they have been drawn according to of the former Yugoslavia it is necessary to give the administrative and territorial divisions of a few notes. the former State. For such cases traditional Revolutionary proclaimed Yugoslav federa- tion of equal nations and ethnicities within re- 1 As provided by Article 62, paragraph 2, item a of 1969 Vienna Convention on the Law of Treaties a fundamental change of cir- publics and autonomous provinces after WW2 cumstances which has occurred with regard to those existing at served, due to opportunist reasons, as an ideal the time of the conclusion of a treaty, and which was not foreseen political mechanism for territorial revision- by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty. ism and sanctification of administratively 370 Duško S. Dimitrijević ▪ Unresolved border issues between Serbia and successor states of the Former Yugoslavia Српска наука данас / Serbian Science Today 2016 ▪ Vol. 1 ▪ No. 3 ▪ 369–382 set borders towards the end of 20th century. of decolonization, especially in the second half Based on the model of the Soviet theory of of the 20th century.2 The basis for the applica- “fluctuating territory”, the Yugoslav constitu- tion of principle in the case of dissolution of tional praxis has consistently developed into the former Yugoslavia hence remained legally two directions. First, in accordance with the questionable [6].3 proclaimed right to self-determination, Yu- The case of the emergence of new inde- goslav constitutions had declared the right to pendent States in the process of decolonization secession, and subsequently the laws on de- and new States formed through the succession centralization of the Yugoslav State made the of former Yugoslavia that was the old subject constitutional norms on territorial integrity of international law and one of the founding relative. For the Second Yugoslavia the begin- States of the United Nations, cannot be legal- ning of the process of realization of the right ly comparable. Since the effectiveness of State to self-determination, as part of general inter- power during and after independence is eval- national public law, meant the disintegration uated in the light of real events, which would, of its State territory. The absence of compro- among other things, confirm the existence of mise and dialogue on “peaceful secession” the law, it is clear that the case of succession of that had been caused by previous confederate the former Yugoslavia caused far more com- abstinence in the internal policy encouraged plex consequences in relation to the conse- the Yugoslav republics to transform their in- quences that have arisen during the withdraw- terests into historic desire of majority nations al of the colonial powers in Latin America, for independence. In the Yugoslav case, the in- Africa and Asia. These consequences included dependence that was proclaimed in the early solving the multitude of problems related to nineties of the 20th century, in a voluntary, uni- the exercise of the right to self-determination lateral manner brought about the international of peoples, but also with ensuring the territo- recognition of the new States, and subsequent- rial integrity and political stability of the new ly led to the justification of borders between States by regulating the fate of the “old” and the republics. But, not fully precise internal “new” minorities with the application of the borders between former Yugoslav republics, rule on the inviolability of State borders in- led in the post Yugoslav period, to certain dis- herited by the old neighbors and with defining agreements between the successor States. This the new border between the successor States was significantly contributed by the principle of uti possidetis, which was widely interpret- 2 The principle of uti possidetis was originally initiated in the in- ed by the Yugoslav Arbitration Commission stances of decolonization of States in Latin America and Africa. that was constituted as a consultative body of The well-known principle of retaining the territorial possession – uti possidetis, ita posideatis, that sanctified the territorial divisions the EC Conference on the former Yugoslavia that had been imposed by the colonial powers in the mentioned [4]. Acting inside the framework of rules and continents, has considerably contributed to the changes in reg- principles of international public law, the Yu- ulation of delimitation of borders in the second half of the 20th century. While in Latin America the principle had solely been ap- goslav Arbitration Commission also known plied on basis of “historically based rights” to territories or on ba- as the Badinter Commission, ‘redefined’ the sis of establishing a “constructive sovereignty”, to the territories of the legally heterogeneous Africa, this principle anticipated a for- factual situation pertaining to the territorial mal request for effective occupation. The principle of uti possidetis status and status of borders of the republics of had played a positive historic role in the field of State succession the Socialist Federal Republic of Yugoslavia in in the function of maintaining a territorial status quo. The prin- ciple provided legitimacy to the anti-colonial struggle for inde- a novel manner [5]. Relying on the decision of pendence and then provided a basis for stabilization of the newly the International Court of Justice in the case established States in the fields of internal and external policies. of the border dispute between Burkina Faso 3 Professor Milan Šahović maintains that, “even though the prin- ciple uti possidetis juris is nowadays universally recognized as a and Mali in 1986, the Arbitration Commis- rule of general international public law, no detailed explanation sion accepted the universal significance of the of the rule is provided. The Arbitration Commission and the EC failed to provide an elaborate legal argumentation explaining the principle uti possidetis in relation to the limit- basis for accepting the hypothesis on transformation of internal ed significance of that principle in the period administrative borders into international ones”. Duško S. Dimitrijević ▪ Unresolved border issues between Serbia and successor states of the Former Yugoslavia 371 Српска наука данас / Serbian Science Today 2016 ▪ Vol. 1 ▪ No. 3 ▪ 369–382 of the SFRY. This observation is confirmed by in Latin America and Africa, uti possidetis juris the fact that most of these issues were the sub- qui, has become a universal legal principle on ject of consideration of the Yugoslav Arbitra- the territorial delimitation that may be appli- tion Commission which intervened directly in cable to the former Yugoslavia, too. Accepting the case of succession of Yugoslavia in finding the de facto situation, the Arbitration Com- concrete ways to overcome legal and political mission stressed the security function of this problems. At this point it is worth to remind principle under the circumstances that might that in connection with the dissolution process lead to “fratricidal fights and endanger the sta- of former Yugoslavia and on the basis of the bility and recently acquired independence of principle of protection of the territorial integ- the new States” [8]. rity of the new State, the Arbitration Commis- In regards to international borders of former sion adopted Opinion n° 2, and strictly limited Yugoslavia that have become external borders the scope of the right to self-determination in of the new States, the Arbitration Commission the context of unstable and unclear situation. maintained that those borders should enjoy It noted that international law as it currently the protection of international public law, in stood, did not spell out all the implications of accordance with the principle embodied in the the right to self-determination. The Commis- UN Charter. The protection of the above-men- sion stressed that self-determination could not tioned borders can also be derived from the be carried out in such a way as to change bor- Declaration on the Principles of Internation- ders existing immediately prior to independ- al Public Law Pertaining to Friendly Relations ence. In accordance with this, in its Opinion and Cooperation Amongst States in Accord- n° 3 the Arbitration Commission insisted on ance with UN Charter (Resolution 2625/XXV the recognition of internal administrative bor- of UN General Assembly). Finally, the inter- ders as international borders. The principle national protection of the borders of the new of preservation of borders that had existed at States can be derived from the Helsinki Final the moment when the new States gained in- Act that had inspired the article 11 of Vienna dependence thus became a general ground Convention on Succession of States in Respect for demarcation between the new States (uti to Treaties (August 23rd 1978) [9]. possidetis juris) [7]. The arrangement for the When analyzing this part of Commission’s above mentioned borders was derived from opinion, one should concentrate on the con- the fact that they represented “lines of demar- crete research of the rules of international cation that may be altered on the basis of free public law that Badinter stated as the basis for and mutual agreement”, and, a contrario, those the opinion on immutability of international borders thus became international frontiers borders of Socialist Federative Republic of Yu- “protected by the international public law”. goslavia after succession. Namely, the article Merely, the effect of the principle uti possidetis 11 of Vienna Convention on State Succession is to “freeze” the legal title for possession of the Pertaining to the Treaties, which sanctified territory at the moment when a new State has the principle of international public law, pre- achieved independence. This interpretation scribes that the succession of States does not may have been substantiated by the idea that encompass the issues of borders that had been the principle of respecting the territorial status determined by treaties, nor the rights and du- quo may have also derived from the 1974 Con- ties pertaining to border regime that had been stitution of SFRY (paragraph 2 and 4 of Ar- determined by treaties [10]. This principle is ticle 5). The above mentioned Constitutional derived from legal practice and the theory of clauses prescribed irreversibility of borders of international public law, and it is essentially the Yugoslav Republics, unless the consent for based on the principle of sovereign equality change of borders was freely expressed. Thus, of States that also prescribes for States’ obli- the formerly recognized principle of delimita- gation to refrain from threats and use of force tion of the new States after the decolonization in their relationship (article 2 of UN Charter). 372 Duško S. Dimitrijević ▪ Unresolved border issues between Serbia and successor states of the Former Yugoslavia Српска наука данас / Serbian Science Today 2016 ▪ Vol. 1 ▪ No. 3 ▪ 369–382

The 1975 Helsinki Final Act and the Declara- concrete capability of particular party to prove tion o CESC also sanctified the principle of im- the validity of the facts it had based its claims mutability of borders. Since the international on. On the basis of historic and legal facts that community is based on the prohibition of in- will be shown in further presentation, one may terventionism aimed against territorial integri- conclude that in particular cases the principle ty of States, it is prescribed that internationally of uti possidetis cannot be fully applicable legal recognized borders may be altered exclusively title for the delimitation between the successor in a peaceful manner, on the basis of mutual States of former Yugoslavia. consent of the interested parties. The Declara- tion of Principles of International Public Law Delimitation of the border between Pertaining to Friendly Relations and Cooper- Serbia and Macedonia ation Amongst States from October 24th 1970 repeated the same principle pertaining to the Not fully precise definition of Yugoslav in- “lines of demarcation” [11]. The 1990 Paris ternal borders led to particular differences be- Charter for New Europe confirmed the rule on tween the successor States of the Socialist Fed- immutability of borders. Furthermore, it co- erative Republic of Yugoslavia after the succes- incided with the collective consensus on rec- sion took place. Thus, Yugoslav-Macedonian ognition of new States that have been formed border that remained as the legacy of previous State community became an issue immediate- on the territory of the Socialist Federative 4 Republic of Yugoslavia. EC adopted “Guide- ly after Macedonia had gained independence. lines on Criteria for Recognition of States in Due to indistinctness of former administrative Eastern Europe and Soviet Union” and Decla- border, that subsequently led to claims, coun- ration of Yugoslavia on December 16th 1991, ter-claims and taking possession of particular conditioning recognition of new States with border regions, in December 1992 UN peace- keeping forces had to be deployed along the their acceptance of basic principles of inter- 5 national public law, amongst others obligation slopes of mountain Šara. That mountain used to respect territorial integrity and inviolability to mark former district borders within Vardar- of State borders [12]. In accordance with the ska banovina of the Kingdom of Yugoslavia. The valid provisions of the international public law borders were inherited in the 2nd Yugoslavia that had been subjected to a particular politi- as well [13]. This has officially marked the be- cal test in case of Yugoslavia one may assume ginning of the process of redefining of former that all former republics of the 2nd Yugoslavia inter-republic borders. Almost immediately acquired internationally recognized borders, after it had gained independence, Macedonia once they had gained independence. Via fac- took unilateral action and marked the frontier ti, the internal administrative borders were line from the region of Šerup on the border transformed into international frontiers, while with Albania, then Southwards to Popova Šap- the international borders remained preserved, ka, along the valley of the Crnkamen river up in accordance with the provisions of interna- to Vraca and Rudoka [14]. Thus, Macedonia tional public law on immutability of interna- has usurped a region well-known for grazing tional borders. However, the first case basically grounds along the Serbo-Macedonian border represents a particular legal presumption that may be generally applicable to the situations 4 Parliament of Macedonia had on September 28th 1990, even before Macedonia gained independence, adopted a document at the moment when new States gained in- entitled “Some Aspects of Territorial Delimitation between the dependence. Still, this presumption does not Socialist Republic of Macedonia and the Socialist Republic of Ser- bia”, expressing aspirations for revision of administrative borders. have an absolute effect ratione temporis, as, in In some places the envisaged corrections of border would go up itself; In fact, it functionally suspends the ef- to 30 km inside Serbian territory. fect of legal title until the moment the title has 5 Thus, UNPROFOR troops have taken control over the municipal- ities of Gora and Restalica. UNRPOFOR has subsequently been been confirmed. The confirmation of the legal replaced by UNPREDEP, and in 1998 military forces of NATO title, on the other hand, always depends on were deployed for safety reasons. Duško S. Dimitrijević ▪ Unresolved border issues between Serbia and successor states of the Former Yugoslavia 373 Српска наука данас / Serbian Science Today 2016 ▪ Vol. 1 ▪ No. 3 ▪ 369–382 on the mountain Šara, whose length is 115 km, experts that was supposed to prepare a draft of starting at Đeneral Janković in Lepenac valley, agreement on description and extension of the along Šara, with slight corrections at Korab in inter-state border. After NATO had intervened the West.6 The region, which Macedonia had against FR Yugoslavia, the UN Security Coun- usurped furthermore, spreads southwards up cil adopted the resolution No. 1244 on July to the region of Belandža, which goes along the 10th 1999. The Kumanovo Military-Technical slopes of South-West of Štirovica in the mu- Agreement was signed and the UN peace en- nicipality of Gora, in the length of 31 km and forcement force KFOR was deployed on Koso- on the area of 7,607 acres [15]. The Yugoslav vo and Metohija side of the Yugoslav-Mace- authorities presented legal arguments for pos- donian border in the conditions of territorial session on the grounds of former official charts instability. After the political changes in FR and data from the real-estates and land records Yugoslavia in October 2000, the negotiations from 1928, and further substantiated Yugoslav on border between the 2 States continued suc- claims by provisions of 1945 Law on the Es- cessfully. Thus, FR Yugoslavia and Macedonia tablishment and Organization of Kosovo and signed the Treaty on Extension and Descrip- 7 Metohija Region. Still, the Macedonian side tion of State Border in Skopje on February 23rd showed no understanding for Yugoslav claims 2001 [19]. The treaty provided legal title; i.e. it and its arguments. The dispute continued, described the State border and stated that the even new territorial claims were submitted. State border represents a plane that vertically New dispute arose over the border between the cuts the surface of Earth, the space beneath it municipality of Vitina in Serbia and the mu- and the aerial space between FR Yugoslavia nicipality of Kumanovo in Macedonia, encom- and Macedonia. The border extends along the passing the forest region of Kopiljače with an topographic border line “between boundary area of 2184 acres. These borders were defined marks, watershed, cliffs or walls”, from “the as early as 1928, and were confirmed by cadas- point of intersection of the Yugoslav, Mace- tral survey measurements in 1952 and meas- donian and Albanian borders in the South up urement involving aerial photographs in 1970 to the point of intersection of Yugoslav, Mac- [16]. Thus, the Yugoslav side maintained that edonian and Bulgarian borders in the North- the above-mentioned borders were definite East”. Demarcation of the borderlines in the [17]. However, the Macedonian side disputed field was postponed for a two-year term that this without providing valid legal arguments. shall commence once the Treaty enters into Claims and counter-claims have been submit- force. Thus, the border dispute between FR ted in relation to regions around the Kačanik Yugoslavia and Macedonia had to be solved de cement factory General Janković, the medieval iure and de facto. However, on 9 October 2008 Serbian monastery of St. Prohor Pčinjski with Macedonia recognized Kosovo after its dec- 13 villages and strategically significant heights “Čupino brdo”, located between Trgovište and laration of independence from Serbia on 17 Kriva Palanka. In order to settle the issues of February in spite of the Serbian protest. On 16 delimitation of Yugoslav–Macedonian border October 2009, Macedonia and Kosovo signed on April 8th 1996 Federative Republic of Yu- the Agreement on the physical demarcation of goslavia and Republic of Macedonia signed the borderline by exchanging some lands [20]. the Treaty on Regulation of Relations and En- Serbia reacted strongly against the Agreement hancement of Relations between FRY and the considering that act as an infringement of the Treaty on Extension and Description of State Republic of Macedonia [18]. At the same time, 8 the two States formed a joint commission of Border and as violation of international law. 8 With the said Agreement, which refers to the Treaty on the de- 6 Once the district administration had been abolished, the disputed marcation of the 2001 Comprehensive Proposal for the Kosovo territory remained with the municipality of Dragaš in Kosovo and Status Settlement of 26 March 2007, the Protocol of April 2008 Metohija. on the joint technical committee and “valid principles of interna- 7 The Ministry of Finance of the Kingdom of Serbs, Croats and tional law”, Macedonia accepted the change of the boundary line Slovenians described the border in its Minutes no. 39027 from on the stretch Debelde/Kodra Fura, Restelica/ Polje and October 9th 1928. Stančić /Topan. 374 Duško S. Dimitrijević ▪ Unresolved border issues between Serbia and successor states of the Former Yugoslavia Српска наука данас / Serbian Science Today 2016 ▪ Vol. 1 ▪ No. 3 ▪ 369–382

According to the applicable rules of interna- defined by the London Agreement between tional law, such an act is not binding for the the Kingdom of Serbia and Montenegro in Republic of Serbia, according to the principle 1913. The said agreement has been found that – pacta tertiis nec nocet, nec prosunt.9 Such an the boundary follows the watershed between act constitutes for it – res inter alios acta [21]. the Ćehotina and Lima, and then cut route between shippers and Bijelo Polje, where it Delimitation of the border between runs through Sandžak to the east, cutting off Serbia and Montenegro the Ibar River still in its upper course and end- ing on the border with Kosovo and Metohija With the dissolution of SFRY, Serbia and district on Mokra Gora. In 2008, Serbia and Montenegro constituted the Federal Republic Montenegro established a joint commission of Yugoslavia (FRY) on 27 April 1992. Shortly for delimitation, whose work was soon inter- after, on 4 February 2003, the FRY was renamed rupted due to the fact that Montenegro, from in the State Union of Serbia and Montenegro opportunistic reasons, recognized the Repub- [22]. The question of mutual demarcation did lic of Kosovo. The unilaterally proclaimed in- not arise until Montenegro used the right to dependence of Kosovo from 17 February 2008, withdraw from the State Union of Serbia and and the international recognition by Montene- Montenegro on the basis of the Law on the Im- gro, is treated as a hostile act since the south- plementation of the Constitutional Charter. In ern Serbian province of Kosovo and Metohi- paragraph 5 of Article 60 of the Law prescribed ja, under the Constitution of the Republic of that: “A Member State which shall not inherit Serbia is its integral part.10 Compared to oth- the right to international legal personality and er parts of the territory where it is necessary all outstanding issues shall be regulated sep- to determine the international border, there arately between the successor and the newly is some great controversy. Notwithstanding independent State”. Withdrawal from the State such open question can be considered a prob- Union of 21 May 2006, Montenegro meant in- lem of determining the boundary line in the dependence de jure and de facto. From the per- forest area located between the municipalities spective of international law on State succes- of Prijepolje and Pljevlja, which is under the sion Montenegro became the Successor State, administration of Serbia, i.e. public company and on the other hand, Serbia maintained the “Srbijašume” [24]. With the normalization of continuity of the Statehood of internation- political relations, negotiations regarding the al legal personality of the Predecessor State delimitation resumed on 7 March 2011, when [23]. After the independence of Montenegro the inter-State Commission tasked with de- in 2006, delimitation has become one of the fining the border, prepared the ground for the current issues between the two countries. The regulation of cross-border traffic and border administrative boundary between Serbia and crossings. Thus, at the meeting of the repre- Montenegro within former Yugoslav federa- sentatives of Serbia and Montenegro agreed on tion mostly followed the line of demarcation the text of four border agreements. Three re- fer to the road transport (Gostun–Dobrakovo, 9 The above rules are related to the subject matter of the interna- tional treaties and shall apply without prejudice to any question 10 Montenegro and Kosovo have established a Commission for the of responsibility which may arise for a State or international or- demarcation and maintenance of the international border. The ganization, that is, a contracting party in connection with the Commission after years ended its work. Serbia did not partici- conclusion or implementation of treaties whose provisions are pate in the work of this Commission, which calls into question not inconsistent with their obligations under another treaty or the international legal validity of the Agreement on the border on the basis of an agreement which is subject to change in rela- between Montenegro and Kosovo which was signed in Vienna tions between certain contracting parties and the completion of at the end of August 2015. According to the official statements the treaty or the suspension of its application, which was created of the two sides, the border will follow the administrative de- as a result of the breach of treaty (paragraph 5 of Article 30, 41 marcation within the provisions of the Constitution of SFRY, the and 60 of the Vienna Convention on the Law of Treaties form Kosovo Constitution and the Comprehensive Proposal for the 1969 and the Vienna Convention on Law of Treaties between Kosovo Status Settlement of former UN Special Envoy Martti States and International Organizations or between International Ahtisaari issued on 27 March 2007, which is not accepted by the Organizations from 1986). Republic of Serbia. Duško S. Dimitrijević ▪ Unresolved border issues between Serbia and successor states of the Former Yugoslavia 375 Српска наука данас / Serbian Science Today 2016 ▪ Vol. 1 ▪ No. 3 ▪ 369–382

Špiljani–Dračenovac and Jabuka–Rače), and The Commission worked in accordance with an agreement relating to the control of the rail- the delimitation that took place after WW2, way traffic between Belgrade and Bar. Control which had been based on the demarcation of of passengers will be, under this agreement, Mačva district in accordance with measure- carried out without stopping passenger trains ments taken between 1920 and 1923 and de- and cargo will be carried out in Bijelo Polje scriptions of joint commission of Austria-Hun- (Montenegro). The inter-State Commission garian and the Kingdom of Serbs, Croats and after visiting the border area determined that Slovenians. Further measurements were taken there is the possibility of establishing a bor- in 1967 and 1982, the border was made official der crossing on the Pešter plateau, in order to and was included in maps, and delimitation maintain the link between the local popula- of private property on land was recorded in tions on both sides of the border line. After the minutes of borderline municipalities.12 As it is Commission insight into the area of the sad- described, the border line between Serbia and dle Čemer, on the road between Pljevlja and goes from the mouth and near Rožaje, Serbian side proposed of the Drina and Sava rivers near Bosanska the opening of border crossings in these loca- Rača in the north, to the village Poblaće be- tions, while the Montenegrin side emphasized tween Serbia, Montenegro and Bosnia and the requirements for opening the international Herzegovina in the south. For the most part it border crossing near Rožaje. In the area of the is a natural border as the line of demarcation municipality Prijepolje, the Serbian side argues presented during the Drina River in the north, that there is no possibility of opening new bor- and old Walachia Mountains of Tara and Zvi- der crossings, or in addition, to meet the needs jezda to and Kovača in the southern of the local population should be to find an ad- part. Due to the natural meander of the river equate solution regarding the regulation of the Drina, there has been some movement of the pass in places that would be jointly submitted boundary line so that the territory of Bosnia by both parties [25].11 Based on these facts, it is and Herzegovina took land belonging to the clear that the States did not engage deeper into city Badovinci, cadastral municipality of Bo- the issues of delimitation, leaving the possibil- gatić in Mačva district. In relations between ity that the Commission, by regulation of the Serbia and Bosnia and Herzegovina there is border regime, comes to satisfactory solutions also the question of the Bosnian enclave of ap- and with respect to the final determination of proximately 400 hectares on the part of the ca- the State border. dastral municipality Mioče, Međurečje village, municipality , which is departmental of Delimitation of the border between cadastral municipality Međurečje, and which Serbia and Bosnia and Herzegovina is drawn to the area of Priboj municipality in Serbia. In the historic sense this borderline had Soon after succession of the SFRY and mu- been transferred from the times of the Turkish tual international recognition, the Bosnia rule over Sandžak (district) [28]. and Herzegovina and Serbia have expressed The positions of Serbia and of Bosnia and Her- their willingness to respect territorial status zegovina how to resolve border issues substan- quo, and agreed on the provisions of Article tially diverge. Serbia has a special interest in 10 Dayton Peace Agreement of 21 November 1995 [26]. Official negotiations on the arrange- 12 The text of the Agreement on the State border was agreed in ment of the border between Serbia and Bosnia December 2002, when the intergovernmental Commission adopted the proposal of the Agreement on the simplified trans- and Herzegovina began through intergovern- port of people and goods at border crossings Uvac-Uvac and mental Commission on 27 April 2001 [27]. Vagan-Ustibar. Also, on this occasion it was verified and Agree- ments determining the border crossings and border traffic. The Agreement on simplified transport of people and goods at bor- 11 According to the Law on the Protection of the State Border of der crossings Uvac–Uvac and Vagan–Ustibar was signed at the the Republic of Serbia, border crossing is possible only through meeting of the International Council of the two countries in Sa- legal border crossings. rajevo, on 24 February 2005. 376 Duško S. Dimitrijević ▪ Unresolved border issues between Serbia and successor states of the Former Yugoslavia Српска наука данас / Serbian Science Today 2016 ▪ Vol. 1 ▪ No. 3 ▪ 369–382 the part of the railway Belgrade-Bar between way, the problem of traffic isolation for about the village of Jablanica in the municipality of two-thirds of the territory of the municipality Čajetina and Štrpce in Rudo (Bosnia and Her- of Priboj from the centre of the municipality zegovina), a distance of about 12 km, as well as would be solved to a large extent, as well as for part of the area around the hydro-reservoir economic and administrative problems arising complexes Bajina Bašta. Serbia does not con- from the current situation. In the case of ac- sider it a viable boundary line on the part of the ceptance of the above proposal, Serbia is ready passage of the railway line through the territo- to offer Bosnia and Herzegovina adequate ter- ry of Bosnia and Herzegovina, even in areas ritorial compensation, according to the “meter where there are hydroelectric facilities, as well per square meter of land of the same quality”. as in the municipalities of Priboj and Rudo. Thus, using the way of compensation Bosnia The boundary line should not intersect traffic and Herzegovina would be offered the forest communication or objects of vital economic land which is of the same quality as the land importance that Serbia built from its own fi- that Bosnia and Herzegovina would give to nancial funds. Serbia has the right from the Serbia. There are not many people who live purchase of land on the left bank of the Drina in the area which​​ was assigned to Bosnia and River, in the Bosnian municipality of Zvornik, Herzegovina, which in the end would have Bratunac, Srebrenica, Rogatica and Višegrad, negative repercussions in terms of migration. which was, during the construction of hydroe- Similarly, the exchange of territories and ter- lectric power plants on the Drina river, flooded ritorial waters could be solved and other ter- and turned into a reservoir. Hydro power plant ritorial issues, which would end delimitation “Zvornik” and “Bajina Bašta” are the property definitely. In the demarcation move regarding of Serbia i.e. its public company “Electric Pow- the hydropower plants “Zvornik” and “Bajina er Industry of Serbia”, and the fact that these Bašta”, Serbia has made a proposal to move power plants cut today the mid-channel of the the boundary line for about 300 meters down, Drina River, should not prejudice the acquired on the left bank of the Drina River, and 200 property rights. The problem is particularly meters upstream from these facilities, which acute at the hydroelectric power plant “Baji- they find on their territory. In return, Serbia na Bašta”, whose generators are located on the has offered Bosnia and Herzegovina the cor- territory of the neighboring country. If Bosnia responding surface of the Drina River, which and Herzegovina accepted the proposal of Ser- now belongs to Serbia. With such proposal in bia, then the new boundary line would con- certain sectors of the Drina River there would tribute to better neighborly cooperation, and be limits change to the right bank, which communication of the local population in the would be beneficial for Bosnia and Herzego- border areas of Priboj and Rudo, which are, vina. In terms of regulating the work of the regarding the geographical, economic and cul- railway Belgrade-Bar railroad between Jab- tural aspects – most closely related. In bilateral lanica villages in the municipality of Čajetina negotiations, Serbia has proposed to Bosnia and Štrpce in Rudo, Serbia has proposed that and Herzegovina that instead of the bounda- the boundary line is withdrawn along the rail- ry line on the mountain Beach, delimitation way, with territorial compensate for Bosnia would be carried out on the central stream and Herzegovina in another move that would of the river Lim, from the mouth of the river be determined by agreement. The reason for Uvac to the village of Sjeverin, so that villages this proposal was the fact that for Serbia the in the municipality of Rudo on the left side of relocation of the railway line near the village the river Lim - Ustibar, Mioče and Mokronozi, of Štrpce on its territory was technically com- belong to Priboj, to which they normally grav- plicated and financially expensive project. In itate. With the adoption of the said proposal, this regard, Serbia has four disputed border Serbia would be given the Bosnian enclave in points, and therefore it proposed the exchange the Priboj local community Sastavci. In this of land and water areas in the size of about Duško S. Dimitrijević ▪ Unresolved border issues between Serbia and successor states of the Former Yugoslavia 377 Српска наука данас / Serbian Science Today 2016 ▪ Vol. 1 ▪ No. 3 ▪ 369–382

40 square kilometers. On the other hand, the federal Croatia was temporarily determined Bosnian side insists that the border demarca- on the basis of the proposal of a special Com- tion line established the existing boundary of mission of the Antifascist Council of National the cadastral municipality, since it represents Liberation of Yugoslavia (AVNOJ) [31].13 The the administrative border that existed at the border was drawn from the Hungarian border, time of the international recognition of Bosnia along the Danube River, all the way to Ilok. and Herzegovina. Bosnia and Herzegovina has The border line passes through the Danube made a proposal that the delimitation could be leaving Croatia Ilok, Šarengrad and Mohovo effected by creating a narrow corridor through and goes south where the villages of Šid Dis- the territory of Serbia, whose enclave would trict: Opatovac, Tovarnik, Podgrađe, Adaševci, receive a direct physical connection to the Lipovac, Strošinci and Jamena are included in territory of the municipality of Rudo. Finally, Croatia and Varoš Šid and villages Ilinci, Ba- Bosnia and Herzegovina has not ruled out a trovci and Morović ceded to Vojvodina [32].14 solution that after signing the agreement on The demarcation between Croatia and Serbia extension and description of the state border, indirectly confirmed the adoption of the Law the two sides continue negotiations on possi- on the administrative-territorial division of ble corrections of the border and exchange and Vojvodina from 1946, in which it was stipu- cession of certain parts of the territory [29]. lated that: “The area of the Autonomous Prov- ince of Vojvodina includes part of the People’s Delimitation of the border Republic of Serbia, whose borders, starting between Serbia and Croatia from the Sava River west of town Sremska Rača to the north, the border People’s Repub- The border problem concerns drawing of lic of Serbia to the People’s Republic of Croatia international border between Croatia and Ser- to the state border with Hungary” [33]. Cor- bia – it had been institutionalized during the rection of the boundary line was made a little succession processes in the territory of the for- later in the Bapska Novak that was transferred mer SFRY when the international community to Croatia and at the Jamena that went to Ser- accepted the Opinion no. 3 of the Arbitration bia (the Autonomous Province of Vojvodi- Commission that inter-republic boundaries na). In the nineties of the 20th century, Serbia were international borders unless the parties adopted the Law on Territorial Organization concerned did not find some other compro- and Local Self-Government, which follows mise solution. In this way, the Danube River previous solutions present in the Law on the became a border between Croatia and Serbia. establishment and organization of the Autono- This is a conclusion that suggests the principle mous Province of Vojvodina from 1945. Based of respect for the territorial status quo and in on the above mentioned regulations, parts of particular the principle of uti possidetis juris qui. Since the agreement on the arrangement 13 Commission headed by Milovan Đilas was appointed by the Presidency of AVNOJ on 19 June 1945. The report of the Com- border between Serbia and Croatia the above mission proposed that the demarcation goes, “temporary border mentioned principles have been applied, and between Vojvodina and Croatia starting from the Hungarian border, the Danube to the border between the villages of Bačko the limit is caught by the line that follows in- and Bukin (district Bačka Palanka); hence the Dan- ter-State demarcation executed in the period ube between the village Opatovac – Mohovo, Lovas – Bapska, after the WW2. The basis of the said demarca- Tovarnik – Šid town, Podgrađe – Ilinci, Adaševci – a small vil- lage, Lipovac – Batrovci, Strošinci – Morović. In this way, the vil- tion was determined primarily by the Law on lages of the current district Šid – Opatovac, Tovarnik, Podgrađe, the establishment and organization of the Au- Adaševci, Lipovac, Strošinci (and Jamena), together with its area – went to Croatia, while Mohovo, Bapska, Varoš Šid, Ilinci, a tonomous Province of Vojvodina, which was small village, Batrovci, Morović – together with its area belonged adopted by the Assembly of the People’s Re- to Vojvodina. It goes without saying that all the territory west of the village and town should belong to Croatia, while those locat- public of Serbia on 1 September 1945 [30]. The ed east should belong to the province of Vojvodina”. provisions of Article 1 of the Law prescribed 14 For Adaševac a technical error was obviously made after it dis- that the border between Vojvodina and the cussed the Apševci in the county Vinkovci. 378 Duško S. Dimitrijević ▪ Unresolved border issues between Serbia and successor states of the Former Yugoslavia Српска наука данас / Serbian Science Today 2016 ▪ Vol. 1 ▪ No. 3 ▪ 369–382 cadastral municipalities on the left bank of the Croatia refers to the so-called historical bor- Danube – Sombor, Beli Manastir (part of Bati- ders that existed before the emergence of the na, Draž, Zmajevac, Kneževi Vinogradi) Apa- alleged Serbian state (the period of Ottoman tin, Bačka Palanka and part of Vukovar (part occupation and the Austro-Hungarian rule of of Mohova and Šarengrad) were transferred Yugoslav countries in the period from 1699 to to Serbia [34]. Basically, the accepted solution 1718). Given that during this period Croatia has no value of delimitation in the internation- had not been an independent state in the in- al sense, but indirectly derived administrative ternational legal sense, and that it did not later legal demarcation of internal borders between present arguments about the existence of de- two federal units of former Yugoslavia [35]. marcation lines between the Yugoslav admin- For the purpose of identifying and determin- istrative-territorial units that constitute the pe- ing the state border, in 2002, Serbia and Cro- riod after the First and the Second World War, atia have established a mixed Commission cannot constitute a legally relevant title [36]. that was tasked to prepare a treaty with the In addition, Croatia emphasizes that in the description of the boundary line between the determination of the Croatian-Serbian border two neighboring countries. The Commission should be used also the Austro-Hungarian ca- adopted the Protocol on Principles for Iden- dastral surveys of land in order to determine tification determining the boundary line and the boundary following the “Border Bound- the preparation of the treaty on the state bor- ary cadastral municipalities”, which deviates der. To date, the Commission released no offi- from the Danube River. According to the ca- cial information on the results of delimitation. dastral boundary, Croatia would receive parts It should be noted that the development and of the territory on the left bank of the Danube stabilization of good neighborly relations be- (i.e., pockets), which are kept in the Croatian tween the Croatia and Serbia are directly de- municipal cadastral records. Generally, high- pendent on the international legal regulation lighting some sort of “historical rights” has its of the state border. Prior to the final delimita- fons et origo in the territorial aspirations. In in- tion, it would be necessary to review all the rel- ternational practice it is known that the with- evant legal arguments. In this sense, I will give drawal of “historical borders” belongs more to in this place just a few observations regarding the political arena, rather than to the domain the mutual territorial claims, as well as facts of law. There is no doubt that any recourse to that may be of importance for the internation- the “historical borders” conceals requirements al legal delimitation. for unilateral expansion of territorial sover- Since 1945, the Danube is determined to be eignty. For such requirements in international a major part of the boundary between Serbia law there is no adequate coverage or rational and Croatia. The river, however, in the period juridical response [37]. Croatian request for up to achieving the independence of the for- determination of the State border on the ba- mer Yugoslav republics successively changed sis of cadastral surveying has not been inter- its course, retreating more from the east, to nationally well-founded since the arguments the west, and thus, large areas of the river of its kind in the world practice are evidence bed, fertile land, went to Vojvodina. Croatia of possession of the acquired property rights, today claimed thousands of hectares of land which per se, cannot be relevant in determining along the Vojvodina side which is due to evo- the state border. It would be legally consistent lutionary shift of Danube found in Serbia. 15 if the enjoyment of acquired property rights Croatia also claimed Vukovar and Šarengrad were secured through mutual consent regime Islands (Ade) on the Danube. In doing so, regulating the use of property on both sides of the border line. On the other hand however, 15 It is estimated that the total area of land that is found on the left the determination of the boundary line must bank of the Danube around 9600 hectares. On the other hand, the land that, due to changes in the flow of the Danube, crossed be made on the basis of rules and principles to the right bank, is approximately 910 hectares. of international law. In this regard, “cadastral Duško S. Dimitrijević ▪ Unresolved border issues between Serbia and successor states of the Former Yugoslavia 379 Српска наука данас / Serbian Science Today 2016 ▪ Vol. 1 ▪ No. 3 ▪ 369–382 boundaries” of the Austro-Hungarian Empire Croatia. At first sight, it seems that it would be can have only secondary importance in terms easy to draw a border along the Danube, since of the definitive delimitation of the State bor- as a river it makes a natural border. Howev- der between Croatia and Serbia [38].16 In its er, in practice there are numerous and often arguments regarding the delimitation with very complex questions. For drawing borders Croatia, Serbia is starting from the position in on the rivers flowing through two or more which the safety limits may follow only from States or on those that are the very borders valid legal basis constitutive nature. Hence, between States, the international law set up Serbia calls for the Law on the Establishment the principle of the mid-channel (Thalweg, fil and Organization of the Autonomous Prov- de l’eau). The mid-channel principle or Thal- ince of Vojvodina from 1945. However, as the weg has been applied since the middle Ages. It mentioned legislative solution has no meaning had been elaborated at the Rastatt Congress in in the international delimitation, the situation 1797. It was accepted as an international legal existing at the time of succession of former Yu- standard in the Treaty of Luneville of 9 Feb- goslavia could not fully compensate for the lack ruary 1801 where it served as a means for the of a legal basis in international legal terms. In division of the Rhine between Germany and the absence of legal title, the international law France. Thalweg has proved to be the best cri- takes into account the factual situation which terion concerning downstream traffic when constitutes a certain State practices based on the water level of a navigable river is at its low- real and unimpeded exercise of effective au- est point [41]. thority (ex facto jus oritur) [39]. Drawing of borders on rivers also includes However, the prescriptions of the existence some specific questions. In practice, the fol- of a legal title in relation to the State border on lowing one is always posed: How should one the Danube is not realized, because it is missing draw borders on Boundary Rivers that change one subjective element – the legal conscious- their courses? A custom rule on the change ness of its obligation to respect (opinion juris of the border is applied for gradual changes sive necessitatits) [40].17 Therefore, according in the riverbed that have been caused by the to the Serbian position, it would be necessary evolutionary performance of the nature. In in- to take advantage of the existing rules of gen- ternational law, accession (accessio) is the phe- eral international law on delimitation on so- nomenon that characterizes the Danube case. called border waters, in which falls the Danube An abrupt rolling off a part of the bank and in the part which flows through Serbia and its incorporation in the other bank (appulsio) produces a similar effect. Overflowing (alu- 16 In the Fisher Case between the United Kingdom and Norway, vio) can also bring about alteration of borders. the International Court of Justice confirmed that the delimita- tion must have international legal aspect, and that cannot de- The artificially made accession makes one part pend solely on the will of the coastal State and its law. have an advantage over the other one. For ex- 17 The lack of delimitation between Croatia and Serbia makes it dif- ample, drainage or lifting of the embankment ficult to demarcate the border line between the two neighbour- ing countries. Tacit consent to the actual situation is not enough makes the level of the water risen, what inev- evidence of the existence of legal awareness of the obligation to itably requires reaching an agreement on the respect the demarcation line between Croatia and Serbia, and the acceptance of the principle of uti possidetis juris, is not enough change of borders since customs rules have not to resolve all border issues. Hence, the existing demarcation line been built. On the other hand, in most cases cannot constitute evidence that the boundaries are already ac- avulsions do not bring about the change of cepted through prescriptions and consent, since there are terri- torial demands in certain areas. Moreover, in the nineties for 20th borders (avulsio). States can deviate from the century, there were the obvious challenges to the administrative above mentioned principle for the reasons of border between the two republics, now independent states. Due to factual change, parts of cadastral municipalities on the left equity in using water flows of Border Rivers bank of the Danube were ceded to Serbia. As to the formal rec- stipulating a treaty clause on non-changea- ognition of the border has never been, a tacit statement of the ex- bility of borders. Regarding this argument, istence of effectiveness of the authorities at the level of the former Yugoslav republics in relation to the internal demarcation line, is it seems that the mid-channel approach not enough for the consent of the other party. 380 Duško S. Dimitrijević ▪ Unresolved border issues between Serbia and successor states of the Former Yugoslavia Српска наука данас / Serbian Science Today 2016 ▪ Vol. 1 ▪ No. 3 ▪ 369–382

(Thalweg) would be the most appropriate for a possible judicial case of the Serbo-Croatian delimitation on the Danube. This principle territorial dispute [43].18 may be applied to the delimitation of border on the Danube, with possible correction on Conclusion the basis of principle of equity pertaining to The results of the previous analysis show the use of Danube’s water currents. The change that there are many open border issues be- of the Danube course westward or actually tween Serbia and other successor States of the towards Croatia has occurred during a long former SFRY. This open border issues were historical period. In that sense, Croatia could mainly created as the result of opinions of the not bring into question the application of the Arbitration Commission according to which international rule mentioned above. As for the internal administrative border between the delimitation of river islands and river branches former Yugoslav republics declared, for polit- of the Danube, the border should be defined in ical rather than legal reasons, as international accordance with its position to the mid-chan- borders. This method is practically framed as the territorial status quo of new States, and in nel. Gradual changes of the mid-channel do fact it is “frozen” in the current situation after not bring into question the border line. As for the dissolution of the former Yugoslavia. How- new river islands that have been created in the ever, this does not mean that the application of meantime, delimitation should be carried out the principle of uti possidetis in the Yugoslav according to their position to the mid-channel case reflects its universal application, because as well as according to the fact whether they the application was not accompanied by the have been created gradually or abruptly. If the awareness of the legal obligation (opinio ju- mid-channel principle could not be applied in ris) between the successor States, but it is for all cases then the principle of equity should be safety reasons due to the conflict of interests implemented, all of the above mentioned refer of different ethnic communities in exercising to the use of the Danube water flow and re- their right to self-determination and for over- sources by applying the rules of the neighbor- coming the crisis that could ensue after gain- hood law [42]. ing independence, accepted as the so called Hence, one should not lose sight of that “general principle” which applies to the new versatile regional co-operation and good independent States and without retroactive effect to the date of independence, which has neighborly relations, which are priorities of in some cases led to flagrant violations of the Serbia’s and Croatia’s foreign as well as Euro- right to self-determination of peoples. Given pean Union integration policies. Serbia and the harmful consequences of its consistent im- Croatia have chance to improve their bilateral plementation, it would be logical that Serbia cooperation through integrated border man- and other successor States of the SFRY regu- agement on the Danube. It presumes conclu- late their border disputes with the application sion of an international treaty on delimitation of all relevant rules and principles of general or the adoption of a collective declaration on international law to the determination of the the recognition of the existing “demarcation facts and circumstances which might be of im- boundary line”. Two neighboring States with portance for the international delimitation. the existing dispute over Danube are less like- 18 In the absence of a valid agreement between the parties, States ly to engage in cooperative management of should seek solutions to ad hoc arbitration or the International shared water resources. Occasional incidents Court of Justice in which case their decisions could replace the legal basis necessary for the final international legal regulation of between the parties do not deny the thesis on the border on the Danube. According to the jurisprudence of the their bona fide acting. However, this makes International Court of Justice, when the uti possidetis principle impossible for each of them to be precluded achieves the goal at the time of independence, converting adminis- trative boundaries in international, the boundaries should not au- in their claims by taking unilateral opposite tomatically become secure. In case of dispute, the Court takes into positions on the current territorial situation in account other arguments, such as the principle of effectiveness, but also acts from which legal basis is derived, on which the uti possi- detis principle is de facto based at the time of the State succession. Duško S. Dimitrijević ▪ Unresolved border issues between Serbia and successor states of the Former Yugoslavia 381 Српска наука данас / Serbian Science Today 2016 ▪ Vol. 1 ▪ No. 3 ▪ 369–382

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382 Duško S. Dimitrijević ▪ Unresolved border issues between Serbia and successor states of the Former Yugoslavia