Arbitration Commission of the Peace Conference on the former Yugoslavia
Encyclopedia
The Arbitration
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...

 Commission of the Conference on Yugoslavia
(commonly known as Badinter Arbitration Committee) was a commission set up by the Council of Ministers
Council of the European Union
The Council of the European Union is the institution in the legislature of the European Union representing the executives of member states, the other legislative body being the European Parliament. The Council is composed of twenty-seven national ministers...

 of the European Economic Community
European Economic Community
The European Economic Community The European Economic Community (EEC) The European Economic Community (EEC) (also known as the Common Market in the English-speaking world, renamed the European Community (EC) in 1993The information in this article primarily covers the EEC's time as an independent...

 on 27 August 1991 to provide the Conference on Yugoslavia with legal advice. Robert Badinter
Robert Badinter
Robert Badinter is a high-profile French criminal lawyer, university professor and politician mainly known for his struggle against the death penalty, the abolition of which he successfully sponsored in Parliament in 1981...

 was appointed to President of the five-member Commission consisting of presidents of Constitutional Courts in the EEC. The Arbitration Commission has handed down fifteen opinion
Opinion
In general, an opinion is a subjective belief, and is the result of emotion or interpretation of facts. An opinion may be supported by an argument, although people may draw opposing opinions from the same set of facts. Opinions rarely change without new arguments being presented...

s on "major legal questions" arisen by the split of the Socialist Federal Republic of Yugoslavia
Socialist Federal Republic of Yugoslavia
The Socialist Federal Republic of Yugoslavia was the Yugoslav state that existed from the abolition of the Yugoslav monarchy until it was dissolved in 1992 amid the Yugoslav Wars. It was a socialist state and a federation made up of six socialist republics: Bosnia and Herzegovina, Croatia,...

 (SFRY).

Commission members

  • Robert Badinter
    Robert Badinter
    Robert Badinter is a high-profile French criminal lawyer, university professor and politician mainly known for his struggle against the death penalty, the abolition of which he successfully sponsored in Parliament in 1981...

    , president of the Constitutional Council of France
    Constitutional Council of France
    The Constitutional Council is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on 4 October 1958, and its duty is to ensure that the principles and rules of the constitution are upheld.Its main activity is to rule on whether proposed...

  • Roman Herzog
    Roman Herzog
    Roman Herzog is a German politician as a member of the Christian Democratic Union, and served as President of Germany from 1994 to 1999...

    , president of the Federal Constitutional Court of Germany
    Federal Constitutional Court of Germany
    The Federal Constitutional Court is a special court established by the Grundgesetz, the German basic law...

  • Aldo Corasaniti, president of the Constitutional Court of Italy
    Constitutional Court of Italy
    The Constitutional Court of Italy is a supreme court of Italy, the other being the Court of Cassation. Sometimes the name Consulta is used as a metonym for it, because its sessions are held in Palazzo della Consulta in Rome....

  • Francisco Tomás y Valiente, president of the Constitutional Court of Spain
    Constitutional Court of Spain
    thumb|300px|The [[Domenico Scarlatti]] Building located in [[Madrid]], seat of the Constitutional Court of Justice of Spain.The Constitutional Court of Spain is the highest judicial body with the power to determine the constitutionality of acts and statutes of the Spanish Government. It is...

  • Irene Petry, president of the Constitutional Court of Belgium

Opinions

Between late 1991 and the middle of 1993, the Arbitration Commission handed down fifteen opinions pertaining to legal issues arising from the fragmentation of Yugoslavia.

Opinion No. 1 (Dissolution of SFRY)

On 20 November 1991 Lord Carrington
Peter Carington, 6th Baron Carrington
Peter Alexander Rupert Carington, 6th Baron Carrington, is a British Conservative politician. He served as British Foreign Secretary between 1979 and 1982 and as the sixth Secretary General of NATO from 1984 to 1988. He is the last surviving member of the Cabinets of both Harold Macmillan and Sir...

 asked if some republics seceded from SFRY, which, as Serbia and Montenegro had claimed, continues to exist, or did SFRY dissolve and all of the republics were equal successor
Succession of states
Succession of states is a theory and practice in international relations regarding the recognition and acceptance of a newly created sovereign state by other states, based on a perceived historical relationship the new state has with a prior state...

s to the SFRY. The commission replied on 29 November 1991 that "the Socialist Federative Republic of Yugoslavia is in the process of dissolution".

Opinion No. 2 (Self-determination)

On 20 November 1991 Lord Carrington asked: "Does the Serbian
Serbs
The Serbs are a South Slavic ethnic group of the Balkans and southern Central Europe. Serbs are located mainly in Serbia, Montenegro and Bosnia and Herzegovina, and form a sizable minority in Croatia, the Republic of Macedonia and Slovenia. Likewise, Serbs are an officially recognized minority in...

 population in Croatia
Croatia
Croatia , officially the Republic of Croatia , is a unitary democratic parliamentary republic in Europe at the crossroads of the Mitteleuropa, the Balkans, and the Mediterranean. Its capital and largest city is Zagreb. The country is divided into 20 counties and the city of Zagreb. Croatia covers ...

 and Bosnia and Herzegovina
Bosnia and Herzegovina
Bosnia and Herzegovina , sometimes called Bosnia-Herzegovina or simply Bosnia, is a country in Southern Europe, on the Balkan Peninsula. Bordered by Croatia to the north, west and south, Serbia to the east, and Montenegro to the southeast, Bosnia and Herzegovina is almost landlocked, except for the...

, as one of the constituent peoples of Yugoslavia, have the right to self-determination
Self-determination
Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...

?" The commission concluded on 11 January 1992 that "that the Serbian population in Bosnia and Herzegovina and Croatia is entitled to all the rights concerned to minorities
Minority group
A minority is a sociological group within a demographic. The demographic could be based on many factors from ethnicity, gender, wealth, power, etc. The term extends to numerous situations, and civilizations within history, despite the misnomer of minorities associated with a numerical statistic...

 and ethnic group
Ethnic group
An ethnic group is a group of people whose members identify with each other, through a common heritage, often consisting of a common language, a common culture and/or an ideology that stresses common ancestry or endogamy...

s[...]" and "that the Republics must afford the members of those minorities and ethnic groups all the human rights and fundamental freedom
Freedom (political)
Political freedom is a central philosophy in Western history and political thought, and one of the most important features of democratic societies...

s recognized in international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...

, including, where appropriate, the right to choose their nationality
Nationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....

".

Opinion No. 3 (Borders)

On 20 November 1991 Lord Carrington asked: "Can the internal boundaries
Border
Borders define geographic boundaries of political entities or legal jurisdictions, such as governments, sovereign states, federated states and other subnational entities. Some borders—such as a state's internal administrative borders, or inter-state borders within the Schengen Area—are open and...

 between Croatia
Socialist Republic of Croatia
Socialist Republic of Croatia was a sovereign constituent country of the second Yugoslavia. It came to existence during World War II, becoming a socialist state after the war, and was also renamed four times in its existence . It was the second largest republic in Yugoslavia by territory and...

 and Serbia
Socialist Republic of Serbia
Socialist Republic of Serbia was a socialist state that was a constituent country of the Socialist Federal Republic of Yugoslavia. It is a predecessor of modern day Serbia, which served as the biggest republic in the Yugoslav federation and held the largest population of all the Yugoslav...

 and between Bosnia and Herzegovina
Socialist Republic of Bosnia and Herzegovina
Socialist Republic of Bosnia and Herzegovina , known until 1963 under the name of People's Republic of Bosnia and Herzegovina, was a socialist state that was a constituent country of the former Socialist Federal Republic of Yugoslavia...

 and Serbia be regarded as frontier
Frontier
A frontier is a political and geographical term referring to areas near or beyond a boundary. 'Frontier' was absorbed into English from French in the 15th century, with the meaning "borderland"--the region of a country that fronts on another country .The use of "frontier" to mean "a region at the...

s in terms of public international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...

?" Applying the principle of uti possidetis
Uti possidetis
Uti possidetis is a principle in international law that territory and other property remains with its possessor at the end of a conflict, unless otherwise provided for by treaty; if such a treaty doesn't include conditions regarding the possession of property and territory taken during the war,...

, the commission concluded on 11 January 1992 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
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...

 freely arrived at." and "Except where otherwise agreed, the former boundaries become frontiers protected by international law."

Opinion No. 4 (Bosnia and Herzegovina)

In this opinion, the Commission was asked whether the independence of Bosnia and Herzegovina should be recognized. The Commission decided that it should not at the time, because unlike the other republics seeking independence, Bosnia and Herzegovina had not yet held a referendum on independence.

Opinion No. 5 (Croatia)

In this opinion, 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 Robert Badinter giving assurances that this deficit would be remedied, and given these assurances the European Community recognized Croatia.

Opinion No. 6 (Macedonia)

In this opinion, the Commission recommended that the European Community accept the request of the Republic of Macedonia for recognition, holding that the Republic had given the necessary guarantees to respect human rights and international peace and security. However, the EC was initially reluctant to accept the recommendations in this opinion because of Greek opposition.

Opinion No. 7 (Slovenia)

In this opinion, the Commission recommended that the European Community recognize Slovenia.

Interlocutory Decision

In this decision, the Commission rejected Serbian and Montenegrin objections to its competence to respond to three references 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)

In this decision, the Commission decided that the legal process of the dissolution of the SFRY had completed, and that hence the SFRY no longer existed.

Opinion No. 9 (Settlement of problems of state succession)

In this decision, the Commission considered how the problems of state succession resulting from the cessation of the SFRY should be resolved. It ruled that they 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 that 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 was rather a new state. Thus the European Community should not automatically recognize the FRY, but apply to it the same criteria to applied to 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 http://ejil.org/pdfs/3/1/1175.pdf).
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, 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.

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. Furthermore, it can be argued 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. 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, Peter Radan 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 Peter 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."

See also

  • United Nations Security Council Resolution 777
    United Nations Security Council Resolution 777
    United Nations Security Council Resolution 777, adopted unanimously on 19 September 1992, after reaffirming Resolution 713 and all subsequent resolutions on the topic, the Council considered that, as the state known as the Socialist Federal Republic of Yugoslavia ceased to exist, it noted that...

  • International Court of Justice advisory opinion on Kosovo's declaration of independence
  • Memorandum of the Serbian Academy of Sciences and Arts
    Memorandum of the Serbian Academy of Sciences and Arts
    The Memorandum of the Serbian Academy of Sciences and Arts was a draft document produced by a 14-member committee composed by members of the Serbian Academy of Sciences and Arts from 1985 to 1986, presided by Kosta Mihailović...


External links

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