The Breakup of Yugoslavia: An International Legal Analysis Eric Fleury

The Conference on Yugoslavia Arbitration Commission Formed August 27, 1991 by European Community Composition: Five member committee; all five constitutional court judges; Chairman Robert Badinter Purpose: To give non-binding legal decisions based on public international law Problem: Greatly deviated from traditional framework of international law

Formed August 27, 1991 by European Community

Composition: Five member committee; all five constitutional court judges; Chairman Robert Badinter

Purpose: To give non-binding legal decisions based on public international law

Problem: Greatly deviated from traditional framework of international law

Dissolution v. Secession The commission concluded that Yugoslavia was in a state of dissolution due to the federal government’s inability to maintain effective control without recourse to force and a concurring will of a majority of republics Lacks a principled approach No international legal instrument governing state extinction; only creation (1933 Montevideo Convention) No differentiation between federal and unitary states Kills two birds with one stone Avoids self-determination Territorial integrity of parent state non-issue

The commission concluded that Yugoslavia was in a state of dissolution due to the federal government’s inability to maintain effective control without recourse to force and a concurring will of a majority of republics

Lacks a principled approach

No international legal instrument governing state extinction; only creation (1933 Montevideo Convention)

No differentiation between federal and unitary states

Kills two birds with one stone

Avoids self-determination

Territorial integrity of parent state non-issue

Uti Possidetis Juris Provides that once an entity has become an independent sovereign state its borders cannot be altered. Developed during the decolonization process in Latin America and Africa Used simultaneously by commission to establish that individual republics had inviolable borders and to deny Serbia’s claim that Serb populations could secede Problems Universally applicable? Invoked backwards

Provides that once an entity has become an independent sovereign state its borders cannot be altered.

Developed during the decolonization process in Latin America and Africa

Used simultaneously by commission to establish that individual republics had inviolable borders and to deny Serbia’s claim that Serb populations could secede

Problems

Universally applicable?

Invoked backwards

Badinter Report Rationale Despite lack of differentiation in regard to federal states, on the ground, it was unclear who could claim to represent Yugoslavia Internationalization of the conflict would stem violence Political will of the international community would be sufficient to support new independent states.

Despite lack of differentiation in regard to federal states, on the ground, it was unclear who could claim to represent Yugoslavia

Internationalization of the conflict would stem violence

Political will of the international community would be sufficient to support new independent states.

Deviation from Deviation: The Dayton Accords Uti Possidetis Juris invoked, then ignored Standard discriminating against federal state, federal state implemented Despite commission declaration that Serb populations outside Serbia only have minority rights, allows for Republika Serbska to remain an entity

Uti Possidetis Juris invoked, then ignored

Standard discriminating against federal state, federal state implemented

Despite commission declaration that Serb populations outside Serbia only have minority rights, allows for Republika Serbska to remain an entity

The New Yugoslavia? Political structure in Bosnia and Herzegovina has similarities to pre-conflict Yugoslavia Weak centralized federal government Citizenship largely shaped by ethnicity Entities within federation along ethnic lines Three member Presidency which corresponds to the three constituent nations of Bosnia and Herzegovina

Political structure in Bosnia and Herzegovina has similarities to pre-conflict Yugoslavia

Weak centralized federal government

Citizenship largely shaped by ethnicity

Entities within federation along ethnic lines

Three member Presidency which corresponds to the three constituent nations of Bosnia and Herzegovina