TransConflict is pleased to present the tenth part of a chapter of “Confronting the Yugoslav controversies – a scholars’ initiative”, entitled “Independence and the Fate of Minorities (1991-1992).”
By Gale Stokes
How then should the members of the community proceed, especially given Serbia’s rejection of the Carrington plan and the EC’s threat to move forward with recognition? Germany’s foreign minister, supported by a significant portion of the German population, kept hinting that Germany was about to recognize both countries. Others argued that formal recognition would only exacerbate the situation. Lord Carrington, Cyrus Vance, and Javier Perez de Cuéllar, the Secretary General of the United Nations, all believed strongly that the recognition of independence should “only be envisaged in the framework of an overall settlement.”  Nevertheless, in order to paper over their differences and find a common way to proceed, a special meeting of European Community foreign ministers decided on December 16, 1991, to ask those Yugoslav republics wishing to be diplomatically recognized to petition for such recognition within one week, stating in their petitions that they accepted certain conditions, including the rights of minorities, the inviolability of frontiers, and other standard aspects of European political life. Four republics responded, and in due course the Badinter Commission reported that two of the applicants, Macedonia and Slovenia, had fully satisfied “the tests in the Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union.” In the case of Croatia the Commission found that the Croatian government had not adequately addressed the special status provisions of the Draft Convention of November 4th. Special status meant that an ethnic group forming a majority in a region (Serbs in Krajina, for example) could have an autonomous status, including the right to show national emblems and to have their own educational system, administration, and police force. Given that armed Serb units had occupied about one-third of Croatia by this time and had already established their own regimes in Eastern Slavonia and Krajina by force, it came as no surprise that the Croats were not willing to accept a provision they believed rewarded their attackers.
While the Badinter Commission was receiving responses from the republics and formulating its advice, Germany simply recognized Croatia on its own on December 23, to become effective on January 15, 1992. Foreign Minister Hans Dietrich Genscher took this action despite the pleas of UN General Secretary Perez de Cuéllar, who wrote Genscher noting previous agreements that recognition could “only be envisaged in the framework of an overall settlement,” and warning “that early selective recognitions could result in a widening of the present conflict.” Susan Woodward argues that Genscher’s actions had little to do with Balkan politics and a great deal to do with German internal politics and the foreign minister’s personality.78 Nevertheless, the decision forced the hand of the rest of the EC. On January 15, 1992, following in Germany’s path and disregarding the Badinter Commission’s report on Croatia, the European powers agreed to formally recognize the independence of both Croatia and Slovenia. Despite the hopes for a common foreign policy that accompanied the creation of the European Union, the agreements for which were signed in Maastricht during this period, Germany’s ability to bring the rest of the community along put an end to the efforts of the conference on Yugoslavia to achieve a comprehensive solution.
The Badinter Commission answered one more important question late in 1991, namely, should the borders of the new states be the same as the republican borders of the former Yugoslavia? In arguing that they should, the commission based its decision on the principle of uti possidetis. This principle arose in the nineteenth century when newly independent countries were emerging from the declining Spanish Empire in Latin America. It held that when colonial states become independent, they must do so within their colonial borders. New states may not legally change these borders by force. In 1986, in a case involving Burkino Faso and Mali, the International Court of Justice ruled that this principle was linked not solely to the decolonization process, but also to the “phenomenon of the obtaining of independence wherever it occurs.” The purpose of uti possidetis, of course, is to prevent the opposing principle of self-determination from leading to chaotic mini-secessions of every possible national or religious entity, a definite possibility in the former Yugoslavia. “Whatever the circumstances,” the commission advised, “ the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris). . . .” This decision essentially extended the Helsinki accords to the Yugoslav successor states. Those accords had confirmed the long-standing standard of the European state system that borders could only be legally changed by the mutual consent of the states involved. Each country that applied for recognition, therefore, had to agree specifically that changing borders by force was illegitimate.
‘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:
73) “Letter from the Secretary-General of the United Nations Addressed to the Minister for Foreign Affairs of the Netherlands,” 10 December 1991, in Trifunovska, 1994, 428. The letter was to be transmitted to all twelve participants in the Conference on Yugoslavia, including (and especially) Germany.
74) The principles in the guidelines were directed to the emerging states of the former Soviet Union as well. By the Alma Ata Declaration of December 16, 1991, all but one of the 12 remaining unrecognized states of the former USSR agreed with the principles. The Baltic states had already been recognized, and Georgia did not sign.
75) Opinions No. 4, 5, 6, and 7, Ramcharan, Official Papers, 1265-1301.
76) Ramcharan, Official Papers, 13-23.
77) Javier Perez de Cuellar to Hans-Dietrich Genscher, 14 December 1991, on CD accompanying Owen, Balkan Odyssey.
78) For a spirited defense of Germany’s position see Daniele Conversi, “German-Bashing and the Breakup of Yugoslavia,” The Donald W. Treadgold Papers 16 (March 1998). For an excellent discussion of German policy, see Sabrina P. Ramet and Letty Coffin, “German Foreign Policy Toward the Yugoslav Successor States, 1991-1999,” Problems of Post-Communism 48, no. 1 (2001): 48-64.
79) The recognition of Croatia, and later Bosnia-Hercegovina, was not consistent with the Badinter Commission’s decision on the dissolution of the SFRY, because neither of those countries exercised effective control over their entire territory. Thus their recognition was a declaratory political act rather than a decision consistent with international law. See Thomas D. Musgrave, Self-Determination and National Minorities (Oxford: Clarendon Press, 1997), 200-07.
80) Rich, “Recognition of States,” 58. Antonio Cassese holds that “it is beyond dispute that at present uti possidetis constitutes a general rule of international law” in Self-determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press,
81) Opinion No. 2, in Ramcharan, Official Papers, 1262. The relationship between this principle and the right of self determination is far from clear. See, for example, J. Klabbers and R. Lefeber, “Africa: Lost between Self-Determination and Uti Possidetis,” in
Peoples and Minorities in International Law, ed. Catherine Brölmann, René Lefeber, and Marjoleine Zieck (Dordrecht: Martinus Nijhoff, 1993), 37-76.