Cornelia Navari. International Affairs. Volume 90, Issue 6, November 2014.
If the validity of an international law rests on the likelihood that it will be obeyed, the Badinter principles leave something to be desired. Generally regarded as the basis of the post-Cold War territorial settlements, the Arbitration Commission of the Conference on Yugoslavia, often referred to as the Badinter Commission (after its chairman, the French jurist Robert Badinter), separated territoriality from ethnicity and made the internal borders of Yugoslavia the borders of the successor states, a principle initially accepted by the former Soviet Union. But Bosnia could not be held within the principles and Kosovo was a direct contradiction of them, not to mention Abkhazia, South Ossetia and Crimea. The strains of keeping within Badinter have revealed inherent difficulties in dispensing entirely with the ethnic principle as a territorial concept, not least by the constitutional judges who made up the Arbitration Commission. They endorsed cultural nationalism within fixed borders and encouraged a significant degree of political self-determination, and they supported identity nationalism as a genuine aspiration of peoples. Crimea, with borders, a separatist movement, a denial of identity rights and a recognized right to autonomy, is as much a child of Badinter as a breakaway from it.
Badinter and the end of the Cold War
The Badinter Commission’s arbitral opinions, issued between November 1991 and January 1992, served effectively as the peace treaty that ended the Cold War in Europe. They set the boundaries of the successor states of Yugoslavia, and established certain principles for their internal construction. The commission’s opinions provided the basis for the European Community (EC) guidelines of 16 December 1991 setting the conditions for the recognition of the successor states to the Soviet Union and of the fragmenting republics of Yugoslavia (and eventually the conditionalities for EC membership). The commission’s principles were immediately honoured by the Soviet Union and its successor states; and it was ‘upon the advice of the Arbitration Commission’ that the presidency of the EC declared its intention to proceed with the recognition of Slovenia and Croatia in January 1992.
The origins of the Badinter Commission lay in a declaration adopted by the European Community at a meeting in Brussels on 27 August 1991, convened by the EC member states to agree a common front in the emerging fragmentation of Yugoslavia (and to forestall unilateral action by Germany, which had already announced an intention to recognize Croatia, and was threatening to do so even if its European partners demurred). According to the declaration, the ‘relevant [Yugoslav] authorities’ would be entitled to submit their differences to an Arbitration Commission of five members. Having decided to treat the matter as a constitutional question, the foreign ministers directed that the commission be made up of the presidents of constitutional courts in EC member states (who had the power to appoint three members of the Arbitration Commission: in the event, the presidents of the French, German and Italian constitutional courts). The Yugoslav federal presidency was entitled to select two other members, but in the event it fell to the three existing members of the Arbitration Commission to appoint them, and they chose presidents of constitutional courts like themselves (the presidents of the Spanish constitutional court and the Belgian cour d’arbitrage). This confirmed that the commission’s arbitral procedures, as well as its decisions, would be of a constitutional and juridical nature, largely isolated from strategic, historical or political considerations.
At the outset it was envisaged that the commission would rule by means of binding decisions upon request from ‘valid Yugoslavian authorities’. In the event, no formal procedure was established, and the commission was called upon to give one opinion at the request of Lord Carrington, the British president of the peace conference (Opinion 1); two at the request of the Serbian Republic, using the conference as an intermediary (Opinions 2 and 3); and the remainder at the request of the EC Council of Ministers (Opinions 4 to 7). Written applications were to be submitted to the Arbitration Commission meeting in parallel with the Conference on Yugoslavia, which would look to it for advice. A decision would be taken and implemented by 15 January 1992 at the latest, a date insisted upon by Germany. As Roland Rich noted: ‘This method of requiring an application for recognition which is examined by an arbitrator and then decided upon according to a set timetable is virtually unprecedented in recognition practice.’
The guidelines of 16 December 1991 issued by the EC foreign ministers described the candidates for recognition as those new states which ‘have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations’. The guidelines then listed a series of requirements including, among others, the following: (1) respect for the provisions of the UN Charter, the Final Act of Helsinki and the 1990 Charter of Paris (the declaration establishing ‘democracy as the only system of government of our nations’), ‘especially with regard to the rule of law, democracy and human rights’; (2) guarantees for the rights of ‘ethnic and national groups and minorities’; and (3) respect for the inviolability of all frontiers, ‘which can only be changed by peaceful means’. It also declared that the EC countries ‘will not recognise entities which are the result of aggression’ and ‘that they would take account of the effects of recognition on neighbouring states’ (on the insistence of Greece with regard to Macedonia).
Having accepted Russia’s continuing personality on 23 December, the EC announced the recognition of eight former Soviet republics on 31 December 1991. All eight countries had given assurances of their readiness to fulfil the EC’s requirements. On receiving similar assurances from Kyrgyzstan and Tajikistan, their recognition occurred on 16 January 1992. Initially silent on Georgia, on 23 March 1992 the EC accorded it recognition in turn, noting that the required assurances had now been received. When Russia annexed Crimea, inspiring claims that Russia was ‘tearing up the post-Cold War settlements’, it was the Badinter principles that were being invoked.
The Badinter principles
At the heart of the Badinter settlement was the separation of territoriality and self-determination from the ethnic principle. It also suggested some considerable enhancement of ‘ethnic and minority’ rights, or at least ‘an interesting direction of thought’ with respect to them, as Alain Pellet put it; and it shored up the ‘internal boundary’ criterion for the delimitation of territory, and endorsed it as a general instead of merely post-colonial principle of international law. According to Pellet, the commission’s rapporteur (and a noted French international lawyer, to whom the commission looked for guidance on international law), the main intent was to combine the avoidance of territorial disputes with protection of the rights of minority communities within the new states. ‘Such arrangements [separating ethnicity from citizenship] would have the immense merit of guaranteeing the rights of peoples—and the individuals of whom they are composed— while avoiding the fragmentation and weakening of States.’
The territorial principle
The territorial principle was most efficiently expressed in Opinion 3, in response to the question: ‘Can the internal boundaries between Croatia and Serbia and between Bosnia and Herzegovina and Serbia be regarded as frontiers in terms of public international law?’ The commission determined that, ‘except where otherwise agreed, the former boundaries become frontiers protected by international law’. The commission based its decision on two principles: respect for the territorial status quo and, ‘in particular … the principle of uti possidetis’, which it claimed as a general principle, applicable to all cases where the independence of a territorial entity was being claimed.
Uti possidetis (‘as you possess’) is a traditional international law doctrine belonging originally to the laws of war; it allowed territory and other property to remain with its possessor at the end of a conflict unless otherwise provided for by treaty. Originating in Roman law, it derived from the expression uti possidetis, ita possideatis, meaning ‘may you continue to possess such as you do possess’. In its original meaning, it enabled a belligerent party to claim territory that it had acquired by war (almost the direct opposite of what is conceded in modern laws of war). During the nineteenth century it acquired a new meaning, of not changing the boundaries of former colonial territories, in the South American context with the withdrawal of the Spanish empire. By declaring that uti possidetis applied, the new states sought to ensure that there was no terra nullius in South America when the Spanish withdrew, which might invite the establishment of new European colonies, as well as to reduce the likelihood of border wars between the newly independent states.
In adopting uti possidetis in the post-Cold War context, the Badinter Commission referred to its universal and general nature, quoting in part the judgment of the International Court of Justice (ICJ) in the case between Burkina Faso and Mali: ‘Nevertheless the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs.’ But this stretched the meaning, certainly as applied to internal administrative boundaries. The territorial settlements after the First World War, which involved the dissolution of three empires (and which provided the closest approximation to a precedent for the post-1990 situation in Europe), had very little regard for the internal borders of any of the three dissolving empires. The only ‘traditional’ (and internal) borders accepted as the borders of a successor state were those of the Czech entity. Where strategic considerations did not impinge (and these were the main considerations in the post-1918 territorial settlements), it was the ethnic and linguistic principle that was used, under the emerging self-determination rule. Bulgaria at the end of the war claimed a frontier ‘based on history and ethnography and said that if any doubt remained it was ready to add, as a third condition, the freely expressed will of the population’. Uti possidetis came into its own only with the African decolonizations, where the widespread existence of ethnically mixed territories (and the general absence of territoriality in traditional African society) presented special problems. It was only in 1986, in the Burkina Faso case, that the International Court of Justice issued the oft-quoted judgment cited above, continuing: ‘Its obvious purpose is to prevent the independence and stability of new states being endangered by fratricidal struggles provoked by the changing of frontiers following the withdrawal of the administering power.’
That Badinter felt uncertain in applying the principle to internal borders is demonstrated by the judges’ immediately moving on to give a constitutional justification, stating immediately after their quoting of the ICJ that the principle ‘applies all the more readily to the Republic since the second and fourth paragraphs of Article 5 of the Constitution of the SFRY [Socialist Federal Republic of Yugoslavia] stipulated that the Republics’ territories and boundaries could not be altered without their consent’. According to the commission, the use of the term ‘consent’ in the relevant articles of the Yugoslav constitution could be taken to mean that the Yugoslav federation had a mutual contractual basis, which could be broken by the withdrawal of the consent of its constituent republics.
The question of which internal boundaries were to be recognized presented itself at once in the form of a declaration of independence on the part of Kosovo, then a sub-region of Serbia in Yugoslavia, which enjoyed borders and some degree of autonomy. Unsanctioned elections held in 1992 had overwhelmingly elected Ibrahim Rugova as president of a self-declared Republic of Kosovo. The commission passed over this request, confirming by its silence that it was considering the borders of a federal unit; that is, the unit claiming to be a sovereign entity had to have been authorized as a formally autonomous element in a federated structure—as it came to be expressed, ‘the first layer down’. Opinion 2 of 11 January 1992 stated that: ‘The boundaries between Croatia and Serbia, between Bosnia and Herzegovina and Serbia, and possibly other adjacent independent states may not be altered except by agreement freely arrived at’. In the most recent exposition, Jure Vidmar has drawn the reasonable conclusion that the ‘new international borders are not colonial-like arbitrarily drawn boundaries, but rather are historically realised lines delimiting self-determination units … and for this reason it cannot be expected that such a state could be newly created.’
Badinter also seemed to accept the strong version of uti possidetis. A weak version, which gained currency in the aftermath of the First World War, stipulated that there should be no change of territory by force, and became in effect the now general convention on the return of any territory occupied during hostilities. The strong version means no change of territory at all. Paul Hensel and his colleagues contrast the strong version embodied in the Charter of the Organization of African Unity with ‘most early efforts, such as those embodied in the League of Nations and United Nations as well as in several Latin American treaties’, which accepted the possibility of peaceful territorial change while opposing the acquisition of territory through violent or coercive means. They identified the Badinter principles with the ‘tough version’.
The notion that longstanding internal borders of a federal nature were sacrosanct seemed immediately to achieve a general relevance. Five eminent jurists called upon by the National Assembly of Quebec to consider the territorial status of Quebec in the event of its separation from Canada reported, following Badinter, that uti possidetis applied generally and that, were Quebec to separate, its borders would remain intact. The 1992 report used the criterion of ‘a well-defined territorial district’ in the context of a federalized ‘predecessor State’.
But neither the principle, nor the reasoning on which it was based, was universally accepted. In a much-quoted critique of Badinter, the Australian international lawyer Peter Radan disputed the constitutional basis for the decision, observing that the Yugoslav constitution did not in fact allow for autonomous separation of its several republics, and that the principle of internal boundaries as forming international borders had so far been applied only to colonial territories and only on the basis of agreement of the relevant colonial power in a mutually agreed process of decolonization, neither of which was the case in Yugoslavia. The Canadian federal government asked for a second opinion on the question of Quebec’s rights to secession from the leading international lawyer on the question, James Crawford, who related the principle back to decolonization and concluded that uti possidetis did not apply to Quebec.
Self-determination
When Croatia declared its intention of separating from Yugoslavia, it did so by appealing to the right of self-determination, an appeal echoed by Chancellor Helmut Kohl to the German parliament on 4 September 1991: ‘When dialogue and harmonious coexistence are no longer possible, we must, in line with our understanding of the right to self-determination consider [recognition] under international law [of ] those republics which no longer wish to belong to Yugoslavia.’ The right to self-determination is generally sourced in the United Nations Charter, article 1.2 of which extends the right of self-determination to all peoples. (Other sources, such as the Declaration on the Granting of Independence to Colonial Countries and Peoples—‘All peoples have the right to self-determination’—tend to be associated with colonized peoples.) However, the Charter does not define what is to be understood by the word ‘peoples’, or how this right is to be exercised. After the First World War, six referendums were used to settle some border questions; but while this was a clear bow to the principle, it did not establish any firm rule for the identification of a people. Up until the dissolution of Yugoslavia, self-determination involving separation was invoked by colonial peoples only, where ‘colonial peoples’ are defined by a formal colonial status: the most recent example is East Timor, which in 1999 was granted independence from Indonesia in negotiation with the former colonial power, Portugal. The Soviet Union was alone in systematically extending the principle to ethnicity, constitutionally defining 15 nationalities on the basis of a set territory and a national language, culture and economy, and according each the right of administration and a good deal of autonomy. The Badinter Commission took the view that ‘in its present state of development, international law does not make clear all the consequences which flow from this principle’, and attempted, in the words of the commission’s rapporteur, ‘a more precise definition of its attributes’.
The critical statement is Opinion 2, issued in response to the question: ‘Does the Serbian population in Croatia and Bosnia-Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination?’ The term ‘constituent peoples’ appears to have been quite deliberately used and to have been intended to invoke a possible link with the Charter. The commission substituted the term ‘communities’ and sought to assign such communities rights within existing states, recognizing ‘that within one State, various ethnic, religious or linguistic communities might exist’. All such communities would have, according to Opinion 2, the right to see their respective identities recognized and to benefit from ‘all the human rights and fundamental freedoms recognized in international law, including, where appropriate, the right to choose their national identity’. In its Opinion 1 of 29 November 1991, published on 7 December, the commission had referred to the ‘now peremptory norms of international law’ that ‘require states to ensure respect for the rights of minorities’. Opinion 2 further called these ‘imperative norms’ binding all subjects of international law. According to Pellet, these ‘could one day be applied to protect, for example, the rights of Gagauz or Chechens without entailing the break-up of Moldavia or Russia’. Opinion 2 concluded that ‘the Republics must afford the members of those minorities and ethnic groups all the human rights and fundamental freedoms recognized in international law, including, where appropriate, the right to choose their nationality’.
The right to choose one’s nationality is sited in the Universal Declaration of Human Rights (1948) as Right No. 15. The target of the Declaration’s drafters was the Nazi ‘single-culture’ nation-state in which the link between the citizen and the state was deemed to be a cultural link, and a blood relationship, instead of, as in the North Atlantic tradition, a legal relationship and a question of rights. In the Yugoslav context, the commission explicitly referred to the rights of Serbians living in Croatia to self-identify as Serbians, without losing rights as residents or future citizenship rights. According to Pellet, the commissioners’ model was the Maastricht Treaty, which separates nationality from citizenship.
The link between self-determination and human rights was made explicit in paragraph 2 of the Opinion, in which the commission called on the identical articles 1 of the two 1966 international covenants on human rights which, in its view, ‘establish[ed] that the principle of the right to self-determination serves to safeguard human rights’. According to such a reading of the two articles, the principle of (collective) self-determination is in the vanguard of and a necessary requisite for the provision of individual human rights. By this association, and a corollary of it, a people must have the right to determine its own fate in order for individuals to have the right to determine theirs.
The significance of this link was underscored by Pellet in his keynote article for the European Journal of International Law, suggestively subtitled ‘a second breath for self-determination’. It signified, he argued, that ‘by virtue of this right [of self-determination], each human entity might indicate his or her belonging to the community … of his or her choice’. Remarking that though such a right, to belong to a community of choice, might appear superfluous, it was in fact fundamental, since ‘it means that each and every man or woman who calls upon this right might choose the group to which they belong’. It ‘suggested’ that Croatia and Bosnia, both of which had large Serb communities, ‘might accord to Serbs in Bosnia-Herzegovina and Croatia, if they so desired, the nationality of their choice [in other words: Serbian nationality]’. It also suggested ‘a distinction between ‘nationality’ and ‘citizenship’ similar to that provided for in the Maastricht Treaty on European Union.
According to Pellet, no general application was intended by the commissioners; moreover, ‘solutions applicable in the European Union are not easily transposable to Central Europe or to the former Soviet Union’. But he gave them the status of ‘a fertile inspirational source’. In the event, the five eminent jurists in the Quebec case seem to have been so inspired, since the ‘right of nationality’ immediately appeared in the subsequent Quebec territorial integrity report. Romania also appears to have been inspired, for the Romanian Citizenship Law of 1991, which made citizenship accessible to anyone born of a Romanian mother, whatever the country of residency, let it be known that Moldavians (also known as Moldovans in Romania) would be entitled to apply for Romanian passports. The practice was sanctioned by the European Court of Human Rights, in the case of Tanase v. Moldova, in a judgment issued on 27 April 2010.
Robert Badinter would go on to propose the ‘Badinter principle’ of self-determination as the basis of the 2001 Ohrid Framework Agreement between the Macedonian government and the Albanian National Liberation Army. Included in the Macedonian constitution to ease a growing tension between Macedonians and Albanians, it gave each community, through its parliamentary representatives, a right of veto over legislation affecting nationality issues, such as voting, language provision and rights of religious observance. The link between self-determination and human rights was carried forward into the EC’s guidelines, where it was sourced to the UN Charter, the Helsinki Accords and the 1990 Charter of Paris, the last of these being affirmed as a source of legal development. In policy terms, EC recognition was made dependent on a constitution guaranteeing political as well as cultural rights to all citizens. (In terms of NATO membership in relation to Georgia and the Ukraine, minimal conditions were set at two successive electoral cycles, properly monitored, with multiparty contestation, as well as language, religious and citizenship rights.)
The commission also endorsed the referendum as a necessary initiation of a right of self-determination. Emerging spontaneously with the Slovenian independence referendum of December 1990, twelve further referendums occurred in the territories of the Soviet Union and Yugoslavia during the course of 1991, each authorizing the local authorities to seek independence. In Opinion 4, issued on 14 January with regard to Bosnia and Herzegovina, the commission was asked whether its independence should be recognized. It held that although the various constitutional processes had been followed, the absence of a referendum meant that ‘the will of the peoples of Bosnia-Herzegovina to constitute [the republic] as a sovereign and independent State cannot be held to have been fully established’. The inference was clear: a referendum had to occur (and one was hastily organized for 1 March). The process was to be repeated in the case of Kosovo.
The emergence of the referendum in this way created the strong suggestion that any territorial unit with a history of administrative powers (and a federal border) might have a potential right of unilateral secession. The five eminent jurists called to report on the territorial integrity of Quebec in the event of its accession to sovereignty took the traditional view that no right to secession derived from self-determination formally understood in international law. But both Pellet and Shaw affirmed that ‘neither does it forbid them to exercise their right in this way’. Moreover, all the jurists endorsed the ‘effective’ theory of statehood—that a state was a state if it could exercise the powers of a state—and they took the view that international law ‘bows to the fact of secession’. This somewhat alarming suggestion in the context of Quebec separatism led the Canadian Attorney General to request the 1997 report on ‘State practice and international law in relation to unilateral secession’ (in which Professor Crawford emphatically denied that Quebec had such a right).
The commission’s final innovation was the notion of state dissolution. Traditionally, the notion of territorial integrity—that a sovereign authority governed a territory—lay at the heart of a state’s sovereignty in international law. Accordingly, secession could only occur on the basis of a state’s consent, ‘a practice [that] has continued to inhibit secession without consent of the sovereign government … as a legitimate way of acquiring statehood’. If, however, a state was deemed to have dissolved into its separate regions or administrative units, such consent would not be required, as it would have, in Crawford’s terms, ‘lost legal personality’. Whether influenced by the German push for unilateral recognition of Croatia or by the real difficulty of identifying a Yugoslav sovereign entity in the rush of the former republics to claim independence, the commission declared in Opinion 1 that Yugoslavia had dissolved, and in Opinion 8, following the recognitions of Croatia, Macedonia and Slovenia, that ‘the SRY [Socialist Republic of Yugoslavia] no longer exists’, avoiding the involvement of the Yugoslav Republic in any decisions on the fate of its constituent republics. But the principle was immediately open to dispute, both as applied to Yugoslavia and as an emerging general principle whose identification might absolve the international community from seeking a state’s permission before recognizing secessions. Yugoslavia immediately denied that it was in a condition of dissolution; Radan pointed to the empirical difficulty of claiming dissolution where a government was still in evidence; Professor Crawford made a clear theoretical distinction between separation and dissolution; and the Canadian Attorney-General rushed to assure the international community that any secession of Quebec could not be taken as evidence that Canada was in a state of dissolution, reaffirming the requirement of the agreement of Canada for any recognition of Quebec.
Stretching Badinter
Law was by no means the final arbiter of the post-Cold War settlements, at least not in the area of guaranteeing the rights of ‘communities’. (Their formal designation as ‘minorities’ was to come later, with a Council of Europe convention on minorities.) On 14 January 1992, the commission delivered its opinions on whether Croatia, Macedonia and Slovenia had satisfied the EC conditions. The examination was fairly cursory, based on the declarations of the applicants themselves, and, in the words of the commission’s rapporteur, ‘relatively indulgent’. The commission ruled that two republics, Macedonia and Slovenia, had fulfilled all the conditions, an unquestionable conclusion in the case of Slovenia, since Article 5 of the 1991 Constitution guaranteed the rights of the small Italian and Hungarian communities, but not so in Macedonia, where hostilities between the government and Albanian irregulars continued through the following decade. In the case of Croatia, a short-lived reservation was made, since its application had not covered the question of treatment of the large Serb community (partly because the Serbs refused to accept that they were a minority and insisted on being a ‘people’), but was rapidly withdrawn on the presentation of written guarantees of future adherence, which in the event took some time to effect. It was not until 2000 that the Council of Europe gave Croatia a clean bill of health. (The process was aided by the large exodus of Serbs through organized evacuations to settle in Serbia and the Republika Srpska, reducing a prewar Serbian population of 12 per cent to the present 4 per cent.)
In the case of Estonia, Latvia and Lithuania, the recognition procedure differed but the results were much the same. Since the original incorporation of the three republics into the Soviet Union had never been recognized by the West, it was not deemed necessary that they pass a formal ‘examination’ of their bona fides; rather, they gained independence and an effective ‘right to recognition’ automatically on the self-dissolution of the Soviet Union. The conditions came into play with their applications to join the European Community, formally made in 2002. Laid down at the June 1993 European Council in Copenhagen, from which they take their name, the conditions for membership required that candidate countries achieve stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities, as well as a functioning market economy (notably the ability to cope with competitive pressure and market forces within the Union). Pellet, recording the commission’s views on the protection of minority rights, imagined that ‘this would be done through precise mechanisms, bringing with them guarantees, which have to be negotiated and settled at international level’. In practice, this would consist of a Council of Europe convention on the protection of national minorities, as well as a looser set of political requirements that were subject to evaluation by individual EC member states. No regular evaluation procedure was established by the EC, and no formal venue of appeal for minorities, leaving them to the consideration of the Organization for Security and Cooperation in Europe (OSCE) and the Council of Europe.
Of the three Baltic states, Lithuania did not have a large Russian minority. The main problems were in Estonia and Latvia, the former with a Russian community that constituted 25 per cent of the population, the majority of whom were denied citizenship rights upon Estonia’s independence, when a language requirement was instituted for the new Estonian citizenship. (Estonian is neither a Slavic nor an Indo-European language; there were initially no schools for teaching Estonian to Russian adults and little provision in Russian schools.) Upon being presented with the Council of Europe Framework Convention for the Protection of National Minorities, Estonia inserted a reservation defining a minority as, among other characteristics, ‘those citizens of Estonia [emphasis added] who reside on the territory of Estonia’, effectively excluding Russian speakers from the protection of the convention. Latvia required that members of a national minority ‘have traditionally lived in Latvia for generations and consider themselves to belong to the State and society of Latvia’. Russia put in a reservation protesting at the inclusion of definitions not present in the Framework Convention and issued a formal declaration that ‘attempts to exclude from the scope of the Framework Convention the persons who permanently reside in the territory of States Parties to the Framework Convention and previously had a citizenship but have been arbitrarily deprived of it, contradict the purpose of the Framework Convention for the Protection of National Minorities’. An OSCE office in Tbilisi acted as a sort of court of appeal, but was closed in 2001, since when Russians in Estonia have come to look upon Russia as the protector of their rights.
With regard to the territorial provisions, Bosnia was in effect the first exemption. On 24 October 1991, the Serb deputies formed the Assembly of the Serbian People in Bosnia and Herzegovina as the highest representative and legislative body of the Serb population in the country, ending the former tripartite coalition. On 9 January 1992, the assembly proclaimed the Republic of the Serb People of Bosnia and Herzegovina, initially declaring it to be part of Yugoslavia. The Serbs, forming 31 per cent of the population, boycotted the referendum of 29 March to 1 April required by the Badinter Commission. Despite this, the EC accepted that Bosnia had met the conditions and recognized the state. ‘Yet every newspaper reader in the world knew by that time than not only could Bosnia and Herzegovina not be accurately described as independent, but it could hardly be described as a state.’ On 7 April 1992, the day the EC and the US recognized Bosnia, the Assembly of Serbian People in Bosnia and Herzegovina met in Banja Luka and declared the independence of the Serbian Republic of Bosnia and Herzegovina, which claimed over half the territory of Bosnia. The ensuing war (essentially between Serbia and Croatia to claim parts of Bosnia, but of which Bosnian Muslims were the main victims) was ended by the General Framework Agreement for Peace in Bosnia and Herzegovina. The agreement, which was reached at Wright-Patterson Air Force Base near Dayton, Ohio on 21 November, was formally signed in Paris on 14 December 1995. Its annex 4 is the current constitution of Bosnia and Herzegovina, recognizing the Republika Srpska as one of its two main political/territorial divisions and defining the governmental powers and functions and the two entities; annex 2 of the agreement delineates the boundary lines between them. Article 1 states that Republika Srpska is a territorially unified, indivisible and inalienable constitutional and legal entity that shall independently perform its constitutional, legislative, executive and judicial functions. A supervised peace was established under EC administration. In effect, the western powers had abandoned, at least for the moment, ‘first layer down’.
But the Bosnian experience set the pattern for Kosovo. The Rambouillet negotiations in early 1999 between the United States, France, Russia and Serbia to end the increasingly bitter hostilities between the Kosovo Liberation Army, Serbian irregulars and the Serbian Army revolved around degrees of autonomy and the modalities of an international presence to supervise the arrangements on the ground. On 23 February 1999, Ambassadors Hill, Petritsch and Mayorsky, the co-chairmen of the Kosovo Contact Group, announced a consensus on effective autonomy for Kosovo. It included ‘mechanisms for free and fair elections to democratic institutions’; for protection of minority rights and rights for ‘members of national communities’; and for the establishment of a fair judicial system. Confirming that a ‘political framework is now in place’, they left to their successors the further work of finalizing implementation, including the modalities of an invited international civilian and military presence.
A novel element of the Kosovo settlement, and one somewhat in contradiction to guideline principle no. 3 of 16 December 1991 forbidding change of territory through the use of force, was a background threat of NATO military action if Serbia refused the Contact Group’s ‘good offices’, made specific in the military provisions of the—in the event, contested—‘Rambouillet Accords’ of 18 March 1999. The ‘accords’, which Serbia denied it had agreed to, would have allowed NATO forces into all parts of Serbia. Arguing that these were but the modalities of an already agreed international civilian and military presence, the American and British delegations presented Serbia with a document which called for NATO administration of Kosovo as an entirely autonomous province within Yugoslavia; and, in annex B, provided for a force of 30,000 NATO troops to maintain order in Kosovo; an unhindered right of passage for NATO troops on Yugoslav territory, including Kosovo; and immunity for NATO and its agents to Yugoslav law. It was the refusal of the Serbian delegation to sign the accords that was presented by the NATO powers as justification for the subsequent bombing campaign. (The Croatian takeover of the enclave of the Serbian Republic of Krajina in 1995, though by the use of force, was not recognized as such, as it was considered a restoration of lands previously seized by Serbs.)
The extent of the illegality of the NATO bombing of Yugoslavia—declared in the famous characterization to be ‘illegal but legitimate’—has been generally ignored. It offended not only guideline no. 3 of the EC’s conditions, but also the NATO treaty (which declares it a defensive organization able to respond only if a NATO member is attacked), the UN Charter and, arguably, the jus in bello. The immediate consensus within the organization, expressed by US Secretary of Defense Cohen in Athens following the ceasefire, was that ‘we will not see any more Kosovos’.
Another, more permanent, innovation was the acquisition by the United Nations of Serbia’s sovereignty over Kosovo. Security Council Resolution 1244 (1999), which in effect took over the NATO action against Serbia, established an international administration of Kosovo, and Regulation 1991/1 of 25 July placed ‘all legislative and executive authority with relation to Kosovo including the administration of justice’ in the hands of a UN Interim Administration Mission (UNMIK), under the authority of the secretary general. It was the first time that the UN had taken over the full sovereign authority of a state, making Kosovo the first European trust territory of the United Nations. (It was preceded by Cambodia in 1992 with a less extensive remit.) UNMIK was joined by a European Union Rule of Law Mission in Kosovo (EULEX), operating as an executive agency within the framework of Security Council Resolution 1244. This was the EU’s second experience after Bosnia in the emerging practice of democratic peacekeeping. (Its mandate was to support the Kosovo authorities in sustaining the rule of law, specifically with regard to the police, judiciary and customs.)
Despite appearances to the contrary, the Badinter principle of territorial integrity for the constituent republics of Yugoslavia, and accordingly for Serbia, held remarkably well in the case of Kosovo. No international legal document of constitutive status ever endorsed the independence of Kosovo, which was achieved rather as a result of a unilateral independence declaration. Several, it was true, came close. Security Council Resolution 1199 called for a ‘final settlement on the basis of the will of the people’; the term ‘self-government’ (albeit always ‘provisional’) appeared with increasing frequency in UNMIK regulations; and the UN Secretary General’s final report of 26 March 2006 recommended to the president of the Security Council ‘supervised independence’. But the principle of territorial integrity and sovereignty of Serbia nonetheless remained the official UN position, recalling the traditional rule in international law; and the Constitutional Framework for Provisional Self-Government in Kosovo left its formal status alone.
The main political obstacle to the recognition of Kosovo’s independence via a Security Council mandate was Russia’s presence on the Security Council, Russia having made it clear that no agreement on Kosovo could be reached without the concurrence of Serbia. But in Weller’s view, there was also the fear that settling it would lead to declarations of independence by Republika Srpska, and also by South Ossetia and Abkhazia, which had existed as quasi-independent states since the separation wars of 1992-3, under the aegis of Russian peacekeeping forces. In the event, two months after America and the EC recognized Kosovo, Russia recognized South Ossetia and Abkhazia. International supervision of Kosovo continued until 2012, despite the declaration of independence of 2008; and Kosovo remains outside the family of nations represented in the United Nations.
The Badinter spirit also continued in the Contact Group’s guiding principles for the present and future treatment of Kosovo. Among them, it named human rights, the protection of the cultural and religious heritage of its various communities, and a referendum on its future status. Above all, there were to be no changes in the current territory of Kosovo, no union of Kosovo with any country, and no partition of Kosovo.
When the UN Secretary General issued his report recommending the ‘supervised independence’ of Kosovo, it was on the grounds of three ‘facts’: the long period of international administration (‘Serbia has not exercised any governing authority over Kosovo. This is a reality one cannot deny; it is irreversible’); the likely inability of Serbia to re-establish authority over the region, and ‘a dynamic political process, which has reinforced the legitimate expectations of the Kosovo people for more ownership in, and responsibility for, their own affairs’. These criteria all point to the principle of effectiveness, the classic grounds for recognition under the Montevideo Convention of 1933. However, Kosovo’s claim, and the one which appeared to be the more persuasive for the international community, was based on the ‘remedial rights’ theory—that the treatment of Kosovo Albanians under the Milosevic government was such that human rights for Kosovars could not be secured under any Yugoslav administration. The notion that the Albanians of Kosovo could not enjoy secure human rights under Serbia seemed to be the guiding principle of the decade-long search for an autonomy that Belgrade could never reverse. Weller has identified it as the first recognition on the grounds of a remedial right, which he characterized as a ‘new branch on the right of self-determination’.
Crimea
Crimea followed on from South Ossetia and Abkhazia as the third in a trio of ‘similar cases’. All three were clearly delimited territorial entities with histories of administrative autonomy. More significantly, all three were accidental acquisitions in the Soviet republics to which they had hitherto belonged. South Ossetia had been gifted by Stalin to his Georgian homeland; Crimea was a former Ottoman province captured by Catherine the Great, part of whose greatness derived from the conquest of Crimea, and attached directly to Russia as a crown land until its handing to the Ukraine in 1954 by Khrushchev, in Putin’s characterization, ‘like a loaf of bread’. (It was, however, a rather valuable loaf, being the reward of the Communist Party of the Soviet Union to the Communist Party of the Ukraine for loyalty during the process of de-Stalinization.)
In each, there was a separatist movement of some duration. In Crimea, it had reached the point of a 1991 referendum supporting separation from Ukraine and reintegration into the Soviet Union as an autonomous republic, after which followed two constitutions establishing a president and a parliament with the right to legislate ‘normative acts’, and a Ukrainian constitution whose article 10 guaranteed Crimean autonomy. The Abkhaz movement started immediately upon evidence that the Soviet Union might redraft the relations among its constituent republics, and Abkhazia joined the Unrepresented Nations and Peoples Organization (UNPO, the NGO established to secure the rights of those ‘peoples’ that the major powers were ignoring) immediately upon the organization’s formation in 1991. It declared independence from Georgia in July 1992, as had South Ossetia in 1990, the latter backed by a movement which had formed rapidly in the late 1980s and which aimed essentially at joining North Ossetia. In each of the latter cases, separatists offered armed resistance to Georgian forces to defend their separation.
In the first two of these cases, the facts on the ground differed from the situation with regard to Serbs living in Croatia and Bosnia, in relation to which Opinion 2 had been declared. In neither Croatia nor Bosnia were there any traditional ‘Serbian lands’, nor any Serbian separatist movements. The popular movement among the Serbs of Bosnia for self-government in the Republika Srpska was established after the fact of possession on the ground. There was a closer resemblance between these two cases and that of Kosovo, where there had been a longstanding separatist movement among the Albanian Kosovars; as in Kosovo, so in Abkhazia and South Ossetia there was both a clearly existent ‘community’ (in the Abkhaz case based on language) and a territorial unit.
In each of the three, separation was claimed on the basis of a long history of relative or complete independence succeeded by legislative and administrative autonomy. Nor were these considered merely self-serving stories. They were widely quoted in the western press as well as by western academics to account for separatist ambitions. The emerging NGOs which acted as spokesmen for their causes also treated them as giving some legitimacy to the separation case. The Hague-based UNPO began its account of Abkhazia with a historical review of the region’s status as a quasi-autonomous entity before endorsing its independence claims. Independent Diplomat, an organization based in New York, Brussels and London that ‘provides greater inclusiveness in diplomacy’ and offers advice and services to ‘those who have most at stake in diplomatic processes’, also treats administrative histories as a resource for gaining hearings in diplomatic forums for its unrecognized clients.
They also claimed varying degrees of political suppression and subjection to the threat and use of violence, as in Kosovo, and appealed to relevant NGO monitors to assess the facts on the ground, a practice that was becoming a familiar element of the UN humanitarian law regime. In the event, Human Rights Watch reported receiving ‘countless reports on both sides that combatants captured during combat were killed and abused, primarily by the Georgians, and that combatants raped and otherwise used sexual terror as an instrument of warfare … targeting ethnic Abkhaz’ and judged ‘these allegations to be credible’. It confirmed Lord Ennals’s original report for UNPO identifying Georgia’s culpability. Both reports would provide support for Putin’s interview of 28 August 2008, citing the ‘aggressive attack against South Ossetia’ as grounds for recognition, and the official statement by Medvedev on 26 August that recognition was ‘the only way to save human lives’. The Russian recognition of South Ossetia and Abkhazia was conferred essentially on the grounds of a remedial right, making them the second and third cases, after Kosovo, of recognition on such grounds.
The Crimean case differed in this respect from the other former Soviet ‘separation states’. Its parallel in recognition was not Kosovo, but rather Croatia. Before the formal involvement of the European Community in Yugoslavia’s affairs, Croatia had held an autonomously initiated independence referendum, on 19 May 1991, following the Croatian parliamentary elections of 1990. An 83 per cent turnout approved the referendum, with 93 per cent voting in favour of independence. A month later, Croatia declared independence on the basis of the UN Charter, and the dissolution of its association with Yugoslavia. Neither assertion was retracted, but both were couched in the form of a moratorium, expiring on 8 October, at which date Croatia severed all ties with Yugoslavia, and which date is now celebrated as Croatia’s independence day. The unsanctioned referendum was, moreover, accepted by the EC in its examination of Croatia’s case as evidence of the Croatian will to separate. In like manner, on 27 February 2014, amid tensions in the region during the Ukrainian revolution, the Supreme Council of Crimea, with powers to propose ‘normative acts’, voted to hold a referendum on the status of Crimea. That poll, originally intended for May, was pre-empted on 11 March by the joint Declaration of Independence of the Republic of Crimea by the Supreme Council of Crimea and the Sevastopol City Council. The legality of the declaration, made in the presence of armed irregulars who had surrounded the council building, has been disputed, but the resultant referendum of 16 March, though hastily organized, appeared to proceed in a more or less orderly fashion. The results were reported as a 96 per cent vote in favour of joining Russia, a figure in accord with the Croatia and Slovenia results. On 17 March the Supreme Council declared its independence from Ukraine, and Russia recognized Crimean independence the same day. Russia’s frequent quoting of the ‘Kosovo precedent’ referred to the legality of Crimea’s referendum in the light of the ICJ judgment that Kosovo’s declaration did not offend international law, and not to its grounds for recognition, which was self-determination as expressed in the UN Charter.
Condemnation of Russia’s actions against the territorial integrity of Georgia and Ukraine was widespread, the United States’ rhetoric on Crimea being especially emphatic (National Security Advisor Susan Rice asserted in March that ‘Crimea will never be a part of Russia’, and Vice-President Biden declared in Kiev on 14 August that the US would ‘never accept Russia’s annexation’). But the practice was somewhat different. In the 2008 ceasefire between Russia and Georgia to end the hostilities, brokered by French President Sarkozy (then President of the EU Council), Georgia had had to agree that no force would be used in any treatment of the contested regions; to allow Russian troops to act in what was termed a peacekeeping role, even outside the boundaries of the separatist enclaves where the war began; and to ‘implement additional security measures’ while awaiting an international monitoring mechanism that ‘might obviate this need’. In the sixth point, both sides agreed that the status of the contested separatist regions ‘would be pursued in the future’, leaving them open for any status, including independence. At Chatham House in June 2014, the Georgian Foreign Minister, speaking with regard to future policy towards the breakaway republics, declared: ‘It’s not about bringing territories back, it’s about bringing people back. I think that if Georgia becomes an attractive country for its own citizens then it will be attractive for our brothers and sisters in South Ossetia and Abkhazia too.’ On 17 March 2014, the EU Council adopted Council Decision 2014/145/CFSP1 imposing a travel ban and asset freeze ‘against persons responsible for actions which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine’, but without mentioning any action with regard to Crimea. In a second round of sanctions, the United States demanded that Moscow ‘halt the flow of fighters and weapons across the border with Ukraine, support a cease-fire and help facilitate the release of hostages held by pro-Russian separatists’, again with no mention of Crimea. In August, the German Chancellor Angela Merkel told journalists that the EU was ready to impose serious economic sanctions against Russia under a third phase of a planned response if there was any ‘further escalation’ of Russia’s actions in Ukraine. In none of the statements was the lifting of sanctions made dependent on any reversal of the independence of Crimea.
Territoriality and self-determination after Crimea
In essence, the post-1990 developments in central and eastern Europe and the Caucasus were marked by an entanglement of the processes of democratization and state creation. At issue, moreover, was a western liberal notion of democratization, centring on rights, which presented a clear opening to self-determination. The Badinter Commission made the link explicit with its constitutionally inspired suggestion that self-determination was a necessary condition for the observance of human rights. It also qualified the notion of territorial integrity by opening up the notion to encompass internal borders, raising the legitimacy of self-determination claims where there was a history of autonomy. It is tempting to say that an emerging practice in central Europe points to a redressing of historical anomalies, and that it will go no further. But the preparation for independence of Iraqi Kurdistan in the wake of the occupation of central Iraq by the ISIL jihadists, and the widespread expectation that such independence will occur, suggests a wider relevance. At the very least, it confirms Rich’s judgment, made as early as 1993, ‘that the question of recognition of states has become less predictable and more a matter of political discretion as a result of recent practice’.
It is scarcely a question of ‘anything goes’. The five exceptions to Badinter nevertheless followed the original template (borders, autonomy, separatist movements and successful referendums). Moreover, the EC guidelines maintain an uneasy existence alongside the traditional criteria for statehood. None of the new creations that gained self-determination outside the guidelines of ‘first layer down’ have achieved the final and critical status of statehood that is conferred by United Nations membership. Consent on the part of the ‘predecessor state’ remains the requirement for UN entry and for the completion of the process of gaining statehood in international law. Self-determination remains a question of equal rights within a political system, albeit now perhaps enhanced. (In 1998, the Canadian Supreme Court held that Quebec could not secede unilaterally; but it also affirmed that a clear vote to secede would require negotiations in good faith on ‘constitutional changes to respond to that desire’.) As clear evidence of the limitations of self-determination in bringing about ‘constitutional changes’, it may be observed that those agencies that help ‘unrecognized peoples’ gain a greater presence in international negotiations seldom use the claim of self-determination.
Above all, there is the evident requirement for Great Power support. None of the new states that were created after the collapse of the Soviet Union and the retreat of Communist Party control in central Europe would have emerged without the concurrence of the permanent members of the Security Council and that major power, Germany, which had access to them. And none of the renegades would have gained their various statuses as quasi-states without the strong and determined support of individual members of it.
Nonetheless, despite the efforts of all sides at various times to limit self-determination to participation within existing political systems, and initially at least to political participation as determined by an existing central government, the more open procedures of protest, plebiscite and seizing effective control would seem to have gained at least some legitimacy. In 1996, the rising international lawyer and human rights monitor Payam Akhavan (a rapporteur on the Conference on Security and Cooperation in Europe’s mission to Croatia in 1992 and a UN human rights field officer for the former Yugoslavia in 1993) wrote ‘of the necessity of conditional respect for the territorial integrity of delinquent States [and] with respect for the fundamental human rights of all “peoples” belonging to the State’. The Badinter Commission did not awaken national self-determination; that emerged spontaneously in central Europe, and, in the event, needed only the initiative of the Germans to take it out of the bottle of a territoriality as traditionally conceived. The conclusion of Asbjørn Eide, a long-term member of the UN Sub-Commission on the Promotion and Protection of Human Rights and drafter of numerous reports on the protection of minorities, seems the fairest: ‘When a group living together compactly in a geographical region or enclave … claims that it is a people rather than a minority’, and when ‘neighbouring States and/or the international community react in ambiguous ways to such claims, or even endorse them, the future status of that territory is thrown into uncertainty’.