The Break-up of Yugoslavia and International Law

Peter Radan

• Publisher: Routledge
• Year: 2004
• Print ISBN:
  9780415253529
• eBook ISBN:
  9781134525454
• Topic: Law
• Subtopic: Eastern European History
• Index: Law

The demise of the former Yugoslavia was brought about by various secessionist movements seeking international recognition of statehood. This book provides a critical analysis from an international law perspective of the break-up of Yugoslavia.
Although international recognition was granted to the former Yugoslav republics of Slovenia, Croatia, Bosnia-Hercegovina and Macedonia, the claims of secessionist movements that sought a revision of existing internal federal borders were rejected. The basis upon which the post-secession international borders were accepted in international law involved novel applications of international law principles of self-determination of peoples and uti possidetis. This book traces the developments of these principles, and the historical development of Yugoslavia's internal borders.

1 Nationalism and self-determination

The origins of the modern right of self-determination of peoples are to be found in the Enlightenment ideas pertaining to popular sovereignty. The principle of popular sovereignty had as its fundamental goal the transfer of sovereignty from the ruler to the ruled. Sovereignty, and therefore political legitimacy, were to be transferred from the absolutist monarch to the people. An individual’s loyalty was to pass from the monarch to the state. The American Revolution, and more significantly the French Revolution, were defining moments in the emergence of the modern right of peoples to self-determination.¹

From these historical events two theoretical versions of self-determination emerged. The point of departure between them is over how to define the holders of the right to self-determination, that is, ‘the people’. The ‘classical’ theory has it that a people is defined in essentially territorial terms. According to this theory, a people is constituted by the population of a particular territorial entity, namely the state. The ‘romantic’ theory of self-determination proclaims a people to be a group of persons forming a cultural group based upon a common history and language. ²In both theories it is common to refer to the people as the ‘nation’. Indeed, it was under the label of nationalism that claims to self-determination were usually sought until early in the twentieth century. The term self-determination was first used in this context in 1848. ³

On 8 January 1918 President Woodrow Wilson outlined to the American Congress his celebrated Fourteen Points as the basis of the post-World War I political settlement for Europe. At the heart of his outline was the principle of self-determination which Wilson saw as ‘an imperative principle of action, which statesmen will henceforth ignore at their peril’.⁴ The significance of Wilson’s championing of self-determination was that the post-World War I political settlement was the first time that the great powers used the principle as the basis for re-drawing the political map of Europe. Since then self-determination has arguably evolved to the status of one of the few peremptory and non-derogable norms of international law ( jus cogens).⁵ In 1995 the International Court of Justice ruled that the right of peoples to self-determination was an essential principle of contemporary international law and an erga omnes obligation. ⁶

The meaning of ‘peoples’

The legal basis of claims to self-determination stems from brief references to the ‘principle of equal rights and self-determination of peoples’ in Articles 1(2) and 55 of the United Nations Charter. These provisions were subsequently developed by a series of resolutions and declarations of the General Assembly of the United Nations (UN), to the point where self-determination has been described as ‘the imperative right of peoples’.⁷ Critical to the legal justification of any claims to self-determinationis whether the claimants can be seen as a people within the terms of the principle of self-determination of peoples. As Crawford has observed, ‘from the perspective of international law, the key feature of the phrase “rights of peoples” is not the term “rights”, but the term “peoples”’.⁸ According to Schoenberg:

The central and most challenging problem of self-determination is the identification of the units, the ‘peoples’, entitled to its exercise, particularly at a time when men and women are becoming more acutely aware of the groups to which they belong and more forcibly expressive about the needs and demands of their groups.⁹

It is widely accepted that a people is defined according to territorial criteria. A people is seen as the population or inhabitants of a defined territorial unit, irrespective of other identities and affiliations. This is consistent with the classical theory of self-determination. Higgins, in seeking a definition of people, has written:

There are really two possibilities – that ‘peoples’ means the entire people of a state, or that ‘people’ means all the persons comprising distinctive groupings on the basis of race, ethnicity, and perhaps religion. The emphasis in all the relevant instruments, and in the state practice . . . on the importance of territorial integrity, means that ‘peoples’ is to be understood in the sense of all the peoples of a given territory. . . . [M]inorities as such do not have a right to self-determination. ¹⁰

A consequence of this view is that self-determination ‘cannot be utilized as a legal tool for the dismantling of sovereign states. . . . Self-determination does not provide groups . . . with the legal right to secede from existing independent States and create a new State’.¹¹ On the other hand, this statist view has been criticised by lawyers,¹² political scientists and philosophers.¹³ These criticisms point out that such a view is outdated and unjust. Although these critics are not in agreement on all issues, they agree that, in some circumstances, national groups or minorities should be granted the right of self-determination, including the right of secession. The approaches inherent in these criticisms are in varying degrees consistent with the romantic theory of self-determination. In the words of McCorquodale:

[A] restriction on the definition of ‘peoples’ to include only all the inhabitants in a State would tend to legitimate an oppressive government operating within unjust State boundaries and create disruption and conflict in the international community. This approach also upholds the perpetual power of a State at the expense of the rights of the inhabitants, which is contrary to the clear development of the right of self-determination and international law generally.¹⁴

In the literature on this issue the word ‘nation’ is commonly used as a synonym for people. Depending on the writer, the nation can mean the population of a certain territorial unit (classical theory of self-determination), or a cultural group based upon a common history and language (romantic theory of self-determination). This has led to what Connor labels ‘terminological chaos’,¹⁵ and it warrants a deeper analysis of the meaning of nation in the context of self-determination.

The meaning of ‘nation’

In the romantic theory of self-determination the nation is briefly defined as a group linked by a common history and culture and bound to a national ideal that the nation should be autonomous, united and distinct in its recognised homeland.
As Smith has written:

Each nation defines the identity of its members, because its specific culture moulds the individual. The key to that culture is history, the sense of special patterns of events peculiar to successive generations of a particular group. An historical culture is one that binds present and future generations, like links in a chain, to all those who preceded them, and one that therefore has shaped the character and habits of the nation at all times. A man identifies himself, according to the national ideal, through his relationship to his ancestors and forebears, and to events that shaped their character. The national ideal therefore embodies both a vision of a world divided into parallel and distinctive nations, and also a culture of the role of the unique event that shapes the national character.¹⁶

On the basis of this definition, nationalism can be viewed as the identification of a significant number of people with a particular nation. A state based upon a nationalist ideology is thus a nation-state. Such a state will, in most cases, also contain a segment of the population who are not members of the nation in question. In a 1971 survey of 132 states only 12 (9.1 per cent) could be described as true nation-states. A further 25 (18.9 per cent) contained a national group that accounted for more than 90 per cent of the population, but also contained a significant minority. In 39 states (29.5 per cent) no nation accounted for 50 per cent of the population.¹⁷

Of particular significance in the development of romantic nationalism were German thinkers, especially Johann Gottfried Herder (1744–1803) and Johann Gottlieb Fichte (1762–1814). In Herder’s view, each nation was a distinct organic entity different from all other nations and thus entitled to be master of its own destiny. The individual member of any nation could only be fulfilled by being true to the national whole of which that individual was a part. In this romantic theory of nationalism, the will of the individual was secondary to the national will. Service to the nation was the highest endeavour of any individual. As Wilson has observed:

In contradistinction to liberal nationalism, romantic nationalism emphasized passion and instinct instead of reason, national differences instead of common aspirations, and above all, the building of the traditions and myths of the past – that is, on folklore – instead of on the political realities of the present.¹⁸

The most significant building block of romantic nationalism is that of culture, especially language, literature and religion. As Gellner has observed, it is cultures that define and make nations.¹⁹ As to language and literature, Herder and Fichte were of the view that they were integrally involved in moulding national consciousness.²⁰ Herder observed that language is the basis by which a group’s identity is established. Without its own language the idea of a nation is an absurdity and a contradiction in terms.²¹ For Fichte the existence of a separate language meant the existence of a separate nation, which had the right to take independent charge of its affairs. Consequentially, ‘where a people has ceased to govern itself, it is equally bound to give up its language and to coalesce with conquerors’.²² Thus, literary elites were often in the vanguard of nationalist movements as they strove to develop national languages based upon the languages used by the masses. Nowhere was this more evident than in the Balkans during the nineteenth century.²³ Once the goal of a nation-state had been achieved, the entrenchment of the national language was often a major item on the state’s political agenda.²⁴

Religion, especially Christianity, also plays a significant role in moulding national consciousness. This aspect of nationalism is usually neglected by ‘modernist’ scholars of nationalism who see the emergence of nationalism in the ‘secularism’ of the Enlightenment, French Revolution and Napoleonic Wars.²⁵ However, as Hastings has shown, religion had a significant role in shaping and canonising the origins of various nationalisms. It has been instrumental in commemorating great threats to national identity, defining the role of the clergy, and in producing vernacular literatures. It has provided biblical models for the nation, established the presence of autocephalous national churches, and ‘discovered’ unique national destinies.²⁶ The impact of religion on the development of nationalism necessarily dates the historical origins of nationalism to periods before the latter part of the eighteenth century. This is contrary to what is argued by the ‘modernists’. The religious roots of English and Serbian nationalisms serve as examples.²⁷ In contemporary times religion is inextricably tied to many nationalist movements.²⁸

The above definitions of ‘nation’ and ‘nation-state’ do not accord with the common usage of these terms in the post-World War II era. This is because the prevailing ideology of the state during the past half-century rejected romantic nationalist ideology. The so-called nation-state of this period was not the nation-stateas defined above. Rather, it could more aptly be described as the ‘citizen-state’. In the citizen-state the focal point of an individual’s loyalty and identification is to the state itself. In a nation-state the individual’s loyalty and identification are focused on the nation, rather than the state as such.

The citizen-state ideology is not romantic–nationalist in orientation. With its focus on the state, it would be more appropriate to label it as ‘patriotic’ in orientation. The romantic notion of national identity is of no consequence in the citizen-state. Rather, it is citizenship that entitles the individual to participation in state affairs. If romantic–nationalist identity is of no consequence in the citizen-state,then state creation based upon a romantic–nationalist ideology cannot be supported. Romantic–nationalist identity is seen as a negative concept ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Acknowledgements
• Introduction
• 1 Nationalism and self-determination
• 2 The ‘nation’ as a ‘people’
• 3 The principle of uti possidetis in Latin America
• 4 The principle of uti possidetis in Asia and Africa
• 5 The national question and internal administrative borders in Yugoslavia, 1918–91
• 6 The international response to and course of the Yugoslav secessions
• 7 The Badinter Commission
• 8 Conclusion
• Appendix
• Select bibliography