TransConflict is pleased to present the eleventh part of a chapter of “Confronting the Yugoslav controversies – a scholars’ initiative”, entitled “Independence and the Fate of Minorities (1991-1992).”
By Gale Stokes
In considering these questions, it is important to note first that the Badinter Commission was an arbitration committee of the ad hoc Conference on Yugoslavia, and therefore not fully competent to recast international law. Further, the actual policies of the various nations making up the European Community were not decided in the Conference, but by the individual states and the appropriate organs of the European Community. Thus, despite the rulings of the Badinter Commission that Macedonia met the established standards and Croatia did not, the European Community recognized Croatia and not Macedonia. And third, despite the enormous significance of the events in Yugoslavia to the people living there, Europe’s primary attention in 1991 and 1992 was focused on the strains of the sea change in European affairs occasioned by the concurrent unification of Germany, breakup of the Soviet Union, and creation of the European Union.
Given the context in which the discussions took place, could it be said that the Badinter Commission’s decisions were appropriate? One could argue that the Badinter opinions were not consistent with international law, which “provides no right of secession, in the name of self-determination, to minorities.” Technically, the Badinter decisions were not based on self-determination, but on the right of secession contained in the Yugoslav constitution of 1974 and other similar documents. Nevertheless, Yugoslavia was clearly disintegrating. The commission had to make the best of a volatile situation and to do it in a very short time frame. The short-term results seem clear: the Badinter decisions intensified the process of Yugoslavia’s dissolution and did not slow the slide toward violence in Bosnia. They did not assist the European negotiators in finding a comprehensive solution for the Yugoslav situation, but they did provide a quasi-legal basis for the breakup and the entrance of the new countries into the international system of states.
In the long run, one of the unintended positive consequences of the arbitration commission’s work was to bring the contradiction between the right of self-determination and the necessity to maintain state borders into clearer focus. During the decade of the 1990s, the European Union, the OSCE, and the Council of Europe devoted considerable effort to defining ways in which that contradiction could be resolved. When Woodrow Wilson spoke of the self-determination of peoples, he meant the creation of new states, particularly out of the Austro-Hungarian Empire. By the year 2000 or so, in significant measure because of efforts to understand and deal with problems in Yugoslavia and some regions of the former Soviet Union, Europeans had reached a new understanding of self-determination. In a world where changing borders was deemed illegitimate, self-determination could only mean self-determination within an established state, internal self-determination, as Antonio Cassese terms it. People did have a right to their own language, their own schools, even perhaps their own administration—they had the right to self-determination in these senses, but not in the sense of creating a breakaway state. The 1990s saw a considerable expansion of this resolution of the contradiction between the principles of fixed borders and self-determination. For example, the Conference on Security and Cooperation in Europe (predecessor to the OSCE) created a High Commissioner on National Minorities in 1993, and in 1998 the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages came into effect. The European Court on Human Rights was restructured, and by 2009 was receiving more than 50,000 individual complaints a year. The Badinter reports were an important part of a larger process that has led to reconciling the contradictory concepts of self-determination and uti possidetis by means of an international commitment to minority rights.
‘Independence and the fate of minorities’ is a component of the larger Scholars’ Initiative ‘Confronting Yugoslav Controversies’ (Second Edition), extracts of which will be published on TransConflict.com every Friday.
Previous parts of the chapter ‘Independence and the fate of minorities’ are available through the following links:
82) R. Higgins, “Postmodern Tribalism and the Right to Secession: Comments,” in Brölmann, Lebefer, and Zieck, 1993, 33.
83) Cassese, Self-determination of Peoples.
84) European Court of Human Rights, 50 Years of Activity (Council of Europe: Strasbourg-Cebex, 2011), 4, available at http://www.echr.coe.int/NR/rdonlyres/ACD46A0F-615A-48B9-89D6-8480AFCC29FD/0/FactsAndFigures_EN.pdf.