Arbitration Commission of the Peace Conference on Yugoslavia
You can help expand this article with text translated from the corresponding article in Russian. (January 2024) Click [show] for important translation instructions.
|
The Arbitration Commission of the Conference on Yugoslavia (commonly known as Badinter Arbitration Committee) was an
Background
This section needs expansion. You can help by adding to it. (January 2024) |
In 1990-1991, contradictions between Serbia and other republics within the federal Yugoslavia (Slovenia and Croatia), economic, political and then ethno-territorial conflicts began to grow.
In the
In early 1991, the
Commission members
- Constitutional Council of France
- Federal Constitutional Court of Germany
- Aldo Corasaniti, president of the Constitutional Court of Italy
- Francisco Tomás y Valiente, president of the Constitutional Court of Spain
- Constitutional Court of Belgium
Opinions
Between late 1991 and the middle of 1993, the Arbitration Commission handed down 15 opinions on legal issues arising from the fragmentation of Yugoslavia.[12]
Opinion No. 1 (Dissolution of SFRY)
On 20 November 1991 Lord Carrington asked whether the secession of some republics from SFRY preserved its existence, as Serbia and Montenegro claimed, or caused its dissolution with all the republics being equal successors to the SFRY. The commission replied on 29 November 1991, "the Socialist Federative Republic of Yugoslavia is in the process of dissolution".[1]
Opinion No. 2 (Self-determination)
On 20 November 1991 Lord Carrington asked: "Does the
Opinion No. 3 (Borders)
On 20 November 1991 Lord Carrington asked: "Can the internal
Opinion No. 4 (Bosnia and Herzegovina)
The Commission was asked whether the independence of Bosnia and Herzegovina should be recognised. The Commission decided against recognition because, unlike the other republics seeking independence, Bosnia and Herzegovina had not yet held a referendum on independence.[14]
Opinion No. 5 (Croatia)
The Commission considered the application of Croatia for the recognition of its independence. The Commission ruled that Croatia's independence should not yet be recognized because the new Croatian Constitution did not incorporate the protections for minorities required by European Community. In response, to this decision, the President of Croatia wrote to Badinter to give assurances that the deficit would be remedied, and the European Community then recognized Croatia.[14]
Opinion No. 6 (Macedonia)
The Commission recommended for the European Community to accept the request of the then Republic of Macedonia for recognition, as the Republic had given the necessary guarantees to respect human rights and international peace and security. However, the European Community was initially reluctant to accept the recommendations because of
Opinion No. 7 (Slovenia)
The Commission recommended for the European Community to recognise Slovenia.
Interlocutory decision
The Commission rejected Serbian and Montenegrin objections to its competence to respond to three references that it had received from Lord Carrington, which resulted in Opinions 8, 9 and 10.
Opinion No. 8 (Completion of the process of the dissolution of the SFRY)
The Commission decided that the legal process of the dissolution of the SFRY had completed and so the SFRY no longer existed.
Opinion No. 9 (Settlement of problems of state succession)
The Commission considered state succession, resulting from the cessation of the SFRY, should be resolved. It ruled that it should be resolved by mutual agreement between the several successor states, with an equitable division of the international assets and obligations of the former SFRY. It also decided that the membership of the SFRY in international organizations could not be continued by any successor state, but each state would have to apply for membership anew.
Opinion No. 10 (Federal Republic of Yugoslavia - Serbia and Montenegro)
In this decision, the Commission ruled that the FRY (Serbia and Montenegro) could not legally be considered a continuation of the former SFRY, but it was a new state. Thus, the European Community should not automatically recognize the FRY but apply the same criteria as for the recognition of the other post-SFRY states.
Text
The text of the first ten opinions of the Badinter Commission has been published in the European Journal of International Law. Opinions 1-3 are reproduced in 3 EJIL 1 (1992) pp. 182ff (available online or for free at [1]). Opinions 4-10 are reproduced in 4 EJIL 1 (1993) pp. 74ff (available online).
Criticism of Opinion No. 3
Peter Radan, an Australian legal academic of Serbian descent, has criticised the Badinter Commission's interpretation of the SFRY Constitution. Apart from principles of international law, the Badinter Commission sought to justify the relevance of the Badinter Borders Principle by reference to article 5 of the 1974 Constitution of the Yugoslavia. The Commission said that the Badinter Borders Principle applies all the more readily to the Republics since the second and fourth paragraphs of Article 5 of the Constitution of the SFRY stipulated that the Republics' territories and boundaries could not be altered without their consent.
Article 5 stipulates:
(1) The territory of the SFRY is indivisible and consists of the territories of its socialist republics.
(2) A republic's territory cannot be altered without the consent of that republic, and the territory of an autonomous province — without the consent of that autonomous province.
(3) A border of the SFRY cannot be altered without the concurrence of all republics and autonomous provinces.
(4) A border between republics can only be altered on the basis of their agreement, and in the case of a border of an autonomous province — on the basis of its concurrence.
In referring to article 5, his criticism is that the Badinter Commission was guilty of selective quoting.
Radan's reason for this opinion is that in relying on paragraphs 2 and 4 of article 5, the Badinter Commission ignored the provisions of paragraphs 1 and 3. In doing so it was justifying the division of the SFRY and the alteration of its international borders in violation of paragraphs 1 and 3. Radan argues that the territorial integrity of republics and the sanctity of their borders referred to in paragraphs 2 and 4 of article 5 only applied in the context of the Yugoslav state whose own territorial integrity and borders remained in place. According to Radan, a republic seeking to violate the provisions of paragraphs 1 and 3 of article 5 could hardly reap the guarantees contained within paragraphs 2 and 4. Consequently, he argues that article 5 provides no support for the application of the Badinter Borders Principle to the fragmentation of the SFRY.
Based upon the above analysis of the reasoning of the Badinter Commission in Opinion No 3 Radan concludes that neither the international law principles of respect for the territorial status quo and uti possidetis nor the provisions of article 5 of the Constitution of the SFRY 1974 provides any justification for the Badinter Borders Principle" and that in redrawing the new borders between independent states "it may even be necessary to facilitate orderly and voluntary transfers of parts of the population."[12]
See also
- United Nations Security Council Resolution 777
- International Court of Justice advisory opinion on Kosovo's declaration of independence
- Memorandum of the Serbian Academy of Sciences and Arts
Notes
- ^ .
- ISBN 978-961-6638-14-2.
- ^ Lajh, Damjan; Krašovec, Alenka (30 March 2003). "Referendum Briefing No 3". Opposing Europe Research Network. University of Sussex.
- ^ "Izviješće o provedenom referendumu" [Report on performed referendum] (PDF) (in Croatian). State Election Committee. 22 May 1991. Archived from the original (PDF) on 27 February 2012. Retrieved 27 December 2011.
- ISBN 978-1-1346-6510-5.
- ISBN 978-0-253-34656-8.
- ISBN 978-0-521-46304-1.
- ^ Соколов В. А. (2018). "Создание центра боевой подготовки «Голубич» милиции Краины". Обозреватель (342): 86.
{{cite journal}}
: CS1 maint: date and year (link) - ISSN 1331-5692. Archived from the originalon 2013-10-29.
- ^ Guskova 2001, p. 107-118, 153-175.
- ISBN 978-0-415-35705-0.
- ^ a b c Peter Radan (April 2000). "Post-Secession International Borders: A Critical Analysis of the Opinions of the Badinter Arbitration Commission". Melbourne University Law Review. 24 (1): 50–76.
- ^ Harris, D. Cases and materials on International Law. 106-107
- ^ doi:10.1093/oxfordjournals.ejil.a035834. Archived from the original(PDF) on April 21, 2012. Retrieved November 30, 2011.
- ^ Evangelos Kofos (1999). James Pettifer (ed.). "Greece's Macedonian Adventure: The Controversy over FYROM's Independence and Recognition". Macmillan Press Ltd.
References
- ISBN 5-94191-003-7.
- Pellet, Allain (1992). "The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples" (PDF). European Journal of International Law. 3 (1): 178-185. . Retrieved 11 January 2024.
- Ramcharan, Bertrand G. (1997). "Opinions of the Arbitration Commission". The International Conference on the Former Yugoslavia: Official Papers. Vol. 2. The Hague; London; Boston: Kluwer Law International. pp. 1259–1302. ISBN 978-90-411-0436-6.
- . Retrieved 11 January 2024.
External links
- Testimony of Vladislav Jovanovic at the Milosevic ICTYtrial, 14 February 2005