Radan, Peter --- "Post-Secession International Borders: A Critical Analysis of the Opinions of the Badinter Arbitration Commission" [2000] MelbULawRw 3; (2000) 24(1) Melbourne University Law Review 50

Post-Secession International Borders: A Critical Analysis of the Opinions of the Badinter Arbitration Commission

PETER RADAN[*]

[The European Community Arbitration Commission on Yugoslavia advised that Yugoslavia’s internal federal borders became international borders following the secession of four of the federation’s republics in the early 1990s. This ruling, referred to as the Badinter Borders Principle, was said to be based upon the international law principles of respect for the territorial status quo and uti possidetis, as well as the Constitution of the Socialist Federal Republic of Yugoslavia 1974. None of these bases is justified upon close analysis of the relevant legal principles. Nor are there other justifications for the Badinter Borders Principle. It is suggested that a new and more flexible approach to post-secession international borders is needed in order to minimise the possibility of violence such as occurred in Yugoslavia during the 1990s.]

I INTRODUCTION

In what Allen Buchanan suggests is ‘the age of secession’[1] the contemporary international environment is less threatened by conflicts between states than by the breakdown of order within states. Although historically secession has been the most conspicuous and most usual method of state creation, for most of the 20th century the creation of new states has been achieved more often with the consent of the former sovereign, particularly in cases of decolonisation.[2] However, following the end of the Cold War, the last decade of this century has seen the re-emergence of secession to the extent that states today are more concerned with internal rather than external threats to their security and territorial integrity.[3] In most of the contemporary secessionist conflicts the claim to statehood is based upon the right of peoples to self-determination.[4] The recent resurgence of secessionist conflict has attracted significant scholarly interest in secession and self-determination from political scientists, philosophers and lawyers.[5] This scholarly interest has focused primarily on issues such as the circumstances in which secession should be permitted and whether it can be justified on the principle of self-determination.

Another of the issues in any secessionist conflict is that of the borders of new states that may emerge as its result. In the case of the fragmentation of the Socialist Federal Republic of Yugoslavia (‘SFRY’), the wars that have been fought on its territory since the early 1990s have been, to a large extent, over the question of the borders of its successor states. The international community, adopting the lead of the European Community (‘EC’), endorsed the view that former internal federal borders would become international borders upon the recognition of statehood of a seceding federal unit. This view was first officially announced in the EC’s Declaration on Yugoslavia on 27 August 1991.[6] However, the major pronouncement of this policy came with the EC Declaration on Recognition[7] and accompanying Guidelines on Recognition[8] on 16 December 1991, in which invitations were extended to all the republics of the SFRY to seek international recognition within the confines of existing internal federal borders.[9] The legal justification for this political decision of the EC was provided by the Arbitration Commission established on 27 August 1991 by the EC within the framework of its Conference on Yugoslavia.[10] The Arbitration Commission was headed by the French lawyer Robert Badinter and will hereafter be referred to as the ‘Badinter Commission’.

In a number of opinions handed down between late 1991 and the middle of 1993, the Badinter Commission made rulings in relation to various legal issues pertaining to the fragmentation of Yugoslavia. One of the most significant rulings was that, in cases of federal units of a state gaining independence, the existing internal federal borders of such federal units are transformed into international borders of the new state. For convenience this ruling is hereafter referred to as the ‘Badinter Borders Principle’.

Unlike the broader issues of secession and self-determination, the issue of post-secession borders has attracted relatively little scholarly analysis. Articles by Steven Ratner,[11] Malcolm Shaw,[12] Tomáš Bartoš[13] and Michla Pomerance[14] have addressed the issue of post-secession international borders, but have not subjected the opinions of the Badinter Commission on this issue to a sustained critical analysis. It is the purpose of this article to fill this gap. It will be argued that the legal arguments offered by the Badinter Commission for the Badinter Borders Principle are unsound. Furthermore, it will be argued that other justifications that have been suggested in support of the principle are without merit and that alternative approaches are needed on the matter of determining post-secession international borders.

II THE BADINTER COMMISSION’S OPINIONS ON BORDERS

The Badinter Commission stated the Badinter Borders Principle in its Opinion No 3 handed down on 11 January 1992.[15] In Opinion No 3 the Badinter Commission was asked to respond to the following question put to it by Lord Carrington, the chairman of the EC Conference on Yugoslavia: ‘Can the internal boundaries between Croatia and Serbia and between Bosnia and Hercegovina and Serbia be regarded as frontiers in terms of public international law?’[16]

In answering that question the Badinter Commission noted that, in the circumstances of the emergence of new states from the debris of the SFRY, both the external and internal borders of the SFRY had to be respected and could not be changed by force. In the case of the SFRY’s external borders, this consequence flowed from various international instruments including the Charter of the United Nations (‘UN Charter’) and the Final Act of Helsinki.[17] SFRY’s internal borders became protected international borders pursuant to the international law principles of respect for the territorial status quo and uti possidetis, and could only be altered by agreement. The Badinter Commission also observed that its conclusions as to the SFRY’s internal borders were bolstered by article 5 of the Constitution of the Socialist Federal Republic of Yugoslavia 1974 (‘Constitution of the SFRY 1974’).[18] It must also be noted that the ruling in Opinion No 3 was made in the context of the SFRY being, according to the Badinter Commission, ‘in the process of dissolution’, this situation having been found to be the case in its Opinion No 1, handed down on 29 November 1991.[19]

III ANALYSIS OF OPINION NO 3

The Badinter Commission’s ruling in Opinion No 3 needs to be analysed on the following points:

1. Whether the Badinter Borders Principle applies to the borders of new states which result from secession, or dissolution of a state, or both;
2. Whether the Badinter Borders Principle is justified on the basis of the international law principle of respect for the territorial status quo;
3. Whether the Badinter Borders Principle is justified on the basis of the international law principle of uti possidetis;
4. Whether article 5 of the Constitution of the SFRY 1974 justifies the conclusion reached in Opinion No 3 that the Badinter Borders Principle applies to the fragmentation of the SFRY.

A Secession or Dissolution or Both?

A cursory reading of Opinion No 3 suggests that the Badinter Borders Principle applies only to cases of dissolution of states. This flows from a reference to Opinion No 1 at the beginning of Opinion No 3, as well as the fact that Opinion No 3 was delivered in the context of the SFRY being, in the view of the Badinter Commission, in the process of dissolution. However, a closer analysis of Opinion No 3, read in conjunction with Opinion No 11 handed down by the Badinter Commission on 16 July 1993, reveals that in the case of the SFRY, the Badinter Borders Principle was applied in the context of secession and not the dissolution of a state.[20]

In Opinion No 3 the Badinter Commission observed that the Badinter Borders Principle applies once a situation has reached the stage of ‘the creation of one or more independent States’.[21] In Opinion No 11 the Badinter Commission referred to the dates upon which the various former Yugoslav republics became independent states.[22] The first independent states were Croatia and Slovenia, who gained that status on 8 October 1991. In the same Opinion the Badinter Commission asserted that the process of dissolution in the SFRY had commenced on 29 November 1991.[23] Thus, the states of Croatia and Slovenia were created before the process of the dissolution of the SFRY had commenced. Consequently, these two states arose as the result of secession. On this basis the Badinter Borders Principle was applied to cases of states emerging as the result of secession.

Whilst it is clear that, in the context of the fragmentation of the SFRY, the Badinter Borders Principle was applied to cases of secession, Opinion No 3 did not necessarily rule out its application to cases of dissolution of states. There is support for the view that it applies to both situations. In 1992 the Government of the Canadian Province of Quebec commissioned a report, prepared by five international law experts, on the question of Quebec’s international borders in the event of its secession from Canada.[24] The Quebec Report stated that in such circumstances Quebec’s provincial borders would automatically become international borders.[25] The report relied heavily upon the decision of the Badinter Commission in Opinion No 3. On the question of whether the Badinter Borders Principle applies to cases of secession or dissolution of a state, the Quebec Report asserted the following:

[I]n the case of secession or dissolution of States, pre-existing administrative boundaries must be maintained to become the borders of the new States and cannot be altered by the threat or use of force, be it on the part of the seceding entity or of the State from which it breaks off.[26]

On the other hand it has been argued that the Badinter Borders Principle does not apply to cases of secession and that it is confined to cases of dissolution of states. In the context of a possible unilateral secession of the province of Quebec from Canada, the Canadian Government has asserted that there ‘is neither a paragraph nor a line in international law that protects Quebec’s territory ... [and that] international experience demonstrates that the borders of the entity seeking independence can be called into question’.[27] The Canadian Government has asserted that the Badinter Borders Principle only applies to cases of dissolution of states and not to those of secession and has cited the case of the break-up of the SFRY as support for this view.[28] This assertion is based upon an acceptance of the proposition that the fragmentation of the SFRY was a case of dissolution and not of secession by its constituent republics. The Canadian Government has expressed the view that the Badinter Borders Principle would only apply in the case of the dissolution of Canada, a process that could be triggered by the unravelling of that state following a unilateral secession of Quebec.[29]

It is arguable that the stance of the Canadian Government is not endorsed by the decision of the Supreme Court of Canada in Reference re: Secession of Quebec.[30] Although the focal rulings in this case were that a unilateral secession of Quebec would be illegal, both under Canadian constitutional law[31] and international law,[32] the decision has implications relating to Quebec’s borders in the event of secession occurring.[33] The Court recognised that a unilateral secession, even though illegal, could be successful if recognised by the international community.[34] Although the Court made no direct statement on borders in this context, it implied that Quebec’s recognition would be within the scope of its existing territorial borders. Furthermore, the Court implied that Quebec’s independence would be the product of secession from, rather than dissolution of, Canada. The first implication flows from the fact that the Court never spoke in terms of part of Quebec seceding unilaterally and obtaining international recognition. Rather, it referred to the ‘unilateral secession by Quebec’,[35] and of action to achieve that goal undertaken by the ‘National Assembly, legislature or government of Quebec’.[36] The second implication stems from the fact that there is nothing in the Court’s judgment that suggests that a unilateral declaration of independence by Quebec would be anything other than secession from Canada. Nothing in the judgment suggests that such unilateral action by Quebec would mean the dissolution of Canada. The inevitable conclusion to be drawn from these implications is that, in the event of international recognition of a unilateral declaration of independence by Quebec, the Supreme Court of Canada assumes that it will be a case of secession and that the Badinter Borders Principle will apply.

On the other hand it can be argued in support of the view of the Canadian Government that there is a significant difference between cases of secession and dissolution of a state. In a case of secession the former sovereign state remains in existence, whereas in a case of dissolution the former sovereign state ceases to exist. This distinguishing factor may justify a different approach to the question of borders following the creation of new states. As a matter of logic, in the case of dissolution of a sovereign state, either new states emerge or parts of the dissolved state become parts of pre-existing states, thereby filling the vacuum created as a result of dissolution. Internal borders of the former sovereign state may be a sound basis for the borders of these successor states. In cases of secession no such vacuum arises. If secession is successful, the sovereign state from which secession is achieved does not cease to exist. Ultimately, the only issue in such a secession is the territorial extent of the new state that is the result of secession. In cases of a federation there is no reason to insist in all cases that the new state’s territorial extent should be that of a particular federal unit of the state from which secession has taken place. This is particularly so in cases where a significant minority opposes secession and wishes to remain part of the state from which secession is sought. Just as in the case of secession from a non-federal state, the territorial extent of the new state is ultimately a political question which will be resolved either (preferably) by negotiation or by force.[37]

Although the Badinter Commission did not explicitly deal with the question of whether the principles governing the determination of the borders of new states arising out of secession differ from those governing cases of dissolution of states, the view of the Canadian Government on the future borders of an independent Quebec shows clearly that the issue is not without its practical implications, and is more than merely an academic question. In the context of the fragmentation of the SFRY, the Badinter Commission opinions do not offer clear guidance on the answer to this question. On the one hand the Commission asserted that it was dealing with a case of the dissolution of the SFRY. On the other hand, on the basis of its own findings of fact, the Commission was, as established above, dealing with cases of secession from the SFRY.

However, the more significant question is whether the Badinter Borders Principle itself can be justified at all, irrespective of whether it applies to circumstances of secession and/or dissolution of states. In Opinion No 3 the Badinter Commission gave a legal justification for the Badinter Borders Principle, based upon two principles of international law and article 5 of the Constitution of the SFRY 1974. The following sections of this article critically evaluate this reasoning as well as other justifications that have been suggested in support of the Badinter Commission’s conclusions.

B The Principle of Territorial Status Quo

The first of the international law principles relied upon by the Badinter Commission as a basis for the Badinter Borders Principle is that of respect for the territorial status quo of existing internationally recognised states. This principle is of undoubted validity. It is reflected in various provisions in international treaties and documents protecting the territorial integrity of states,[38] the inviolability of international borders[39] and the doctrine of the stability of borders.[40] However, the principles of territorial integrity and the inviolability of international borders do not provide any justification for the Badinter Borders Principle. This is because these principles only apply to international states, and not to federal sub-units of such states.[41]

As to the doctrine of the stability of borders, the International Court of Justice in the Case Concerning the Temple of Preah Vihear observed as follows:

In general, when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality. This is impossible if the line so established can, at any moment, and on the basis of a continuously available process, be called into question, and its rectification claimed, whenever any inaccuracy by reference to a clause in the parent Treaty is discovered. Such a process could continue indefinitely, and finality would never be reached so long as possible errors still remain to be discovered. Such a frontier, so far from being stable, would be completely precarious.[42]

However, the stability of borders principle relates only to international borders. The question of the stability of internal state borders is not a matter within the ambit of international law.[43] Furthermore, the stability of borders principle is dependent on there being a treaty establishing a border. In the Case Concerning the Territorial Dispute Shahabuddeen J, in his separate opinion, stated:

The principle of the stability of boundaries, as it applies to a boundary fixed by agreement, hinges on there being an agreement for the establishment of a boundary; it comes into play only after the existence of such an agreement is established and is directed to giving proper effect to the agreement. It does not operate to bring into existence a boundary agreement where there was none.[44]

In the light of these observations the stability of borders principle was not a sound justification for the protection of the SFRY’s internal federal borders following secession for the following reasons. First, the SFRY’s internal borders were not international borders. Second, even if it is accepted that upon international recognition these internal federal borders became international borders, the stability of borders principle would still be irrelevant. This is because the principle requires that the borders be determined by treaty or agreement.[45] In the case of the SFRY, internal federal borders were not the subject of any legal document or act of any state or republic institution.[46] They were established by the inner sanctum of the Communist Party of Yugoslavia following World War II.[47] Thus, nothing even analogous to a border treaty or agreement was ever entered into in relation to the internal borders of the SFRY.

C The Principle of Uti Possidetis Juris

The second international law principle relied upon by the Badinter Commission in Opinion No 3 was that of uti possidetis. Before analysing the Badinter Commission’s application of this principle a brief explanation of uti possidetis is necessary.

The use of the Roman law principle of uti possidetis in international law was initially applied ‘to connote a method of determining the territorial changes that had occurred as a result of an armed conflict.’[48] Thus, subject to a provision in a peace treaty to the contrary, at the end of a war each state retained as its territory that which it actually possessed at the time hostilities ceased.[49] The use of uti possidetis in the context of border issues first arose in the early nineteenth century in the context of the decolonisation of Central and South America from Spanish and Portuguese rule. The principle, when applied, meant that former colonial borders became international borders of the newly independent states. There are two versions of the uti possidetis principle. By uti possidetis juris, borders are defined according to legal rights of possession based upon the legal documents of the former colonial power at the time of independence. By uti possidetis de facto, borders are defined by territory actually possessed and administered by the former colonial unit at the time of independence, irrespective of the legal definition of former colonial borders.[50] Of these two versions, uti possidetis juris was more commonly applied in Latin America.

With the decolonisation of Africa after World War II, the principle of uti possidetis juris was effectively adopted by a resolution of the Organisation of African Unity (‘OAU’) at its Cairo Conference in 1964 (‘1964 OAU Resolution’), by which member states pledged themselves ‘to respect the borders existing on their achievement of independence.’[51]

Prior to 1986 the legally binding nature of the uti possidetis principle depended upon it being specifically fixed by treaty between the relevant states as the basis for resolving a border dispute. In the absence of such a specific stipulation the principle did not apply.[52] The principles upon which any arbitral body was to determine a border dispute were dependant upon the provisions of the relevant treaty or agreement.[53] When such a treaty or agreement stipulated the application of the principle of uti possidetis, it became the ‘first duty’[54] of any appointed arbitral body to establish the border line according to that principle. If a treaty was silent on the basis upon which a border dispute was to be resolved, the arbitral body could, but was not obliged to, apply the principle of uti possidetis juris.[55]

Since 1986, following the decision of the International Court of Justice in Case Concerning the Frontier Dispute (Burkina Faso v Republic of Mali),[56] a treaty need not explicitly stipulate that the principle of uti possidetis governs the resolution of a border dispute for that principle to apply. In that case the Court dealt with a border dispute in which the Special Agreement between Burkina Faso and Mali required the Court to determine the border line in accordance with ‘the principle of the intangibility of frontiers inherited from colonization’.[57] In its judgment the Court ruled that the principle of uti possidetis juris was ‘a firmly established principle of international law where decolonization is concerned’.[58] This meant, as the Court subsequently stated in Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador v Honduras: Nicaragua Intervening),[59] that if a treaty stipulated that a dispute was to be determined by principles of international law, then the principle of uti possidetis juris was to apply, as compared to the situation prior to 1986 where an arbitral body in this situation could, but was not bound to, apply the principle of uti possidetis juris. On the other hand, the ruling in the Frontier Dispute Case does not apply if ‘parties to any dispute ... specifically agree to the contrary that the principle of uti possidetis should not be applied.’[60] Thus, it is ultimately up to the states that are parties to any border dispute to determine whether the principle of uti possidetis juris applies to the resolution of the dispute.

As to the principle of uti possidetis being a basis for the Badinter Borders Principle, the Badinter Commission stated the following in Opinion No 3:

Uti possidetis, though initially applied in settling decolonization issues in America and Africa, is today recognized as a general principle, as stated by the International Court of Justice in the case between Burkina Faso and Mali (Frontier Dispute, [1986] ICJ Reports 554 at 565): ‘Nevertheless the principle is not a special rule which pertains to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles’.[61]

However, it must be noted that the Badinter Commission selectively quoted from the decision in the Frontier Dispute Case.[62] Immediately after the passage from the Frontier Dispute Case quoted by the Badinter Commission, the International Court of Justice added the words: ‘provoked by the challenging of frontiers following the withdrawal of the administering power.’[63] These omitted words clearly indicate that the principle of uti possidetis juris applied in the context of decolonisation. This point is made quite explicitly in other parts of the Frontier Dispute Case judgment. Earlier in the same paragraph as that quoted by the Badinter Commission, the International Court of Justice said: ‘[a]lthough there is no need, for the purposes of the present case, to show that this is a firmly established principle of international law where decolonization is concerned, the Chamber wishes to emphasize its general scope.’[64] Later in its judgment the Court said:

Uti possidetis, as a principle which upgraded former administrative delimitations, established during the colonial period, to international frontiers, is therefore a principle of a general kind which is logically connected with this form of decolonization wherever it occurs.[65]

The Court’s reference to the generality of the principle of uti possidetis juris was to indicate that the principle was not confined in its application to decolonisation in ‘one specific system of international law’,[66] namely that of Latin America, but rather that it applied to decolonisation wherever it occurred.[67]

Nothing in the decision in the Frontier Dispute Case suggests that the principle of uti possidetis applies to cases of secession from internationally recognised states.[68] Rather, the whole tenor of the decision indicates that the principle is confined to decolonisation. The principle is not, as claimed by the Badinter Commission, recognised as a general principle applicable to all cases of independence. As Santiago Torres Bernárdez has written:

As a principle of international law the uti possidetis juris rule is simply not concerned with the question of the definition of title to territory and boundaries in such types of succession as transfer of a territory of a State, separation from a State, dissolution of a State, [and] uniting of States.[69]

Malcolm Shaw has defended the Badinter Commission’s interpretation of the uti possidetis juris principle on the basis that the International Court of Justice in the Frontier Dispute Case did not need to discuss the principle of uti possidetis juris because it was binding upon it by virtue of the Special Agreement between Burkina Faso and Mali.[70] The fact that the Court did discuss the principle of uti possidetis juris in some detail is viewed by Shaw as indicating that the Court viewed it as applying beyond the context of decolonisation.[71] However, Shaw’s analysis cannot be sustained for two reasons.

First, it ignores the explicit and repeated references by the Court to uti possidetis juris applying specifically in the context of decolonisation. Second, although it was not strictly necessary for the Court to analyse the principle of uti possidetis juris because the Special Agreement between Burkina Faso and Mali clearly indicated the basis upon which their border dispute was to be resolved, the Court did so in order to establish the generality of the principle’s application to decolonisation beyond the region of Latin America. The discussion on the generality of the principle of uti possidetis juris was clearly in relation to its generality in the context of decolonisation. There is nothing in the Court’s judgment to justify the references to the generality of the principle as extending to cases involving secession from independent and internationally recognised states.

It has been suggested that in the case of the SFRY the application of the uti possidetis juris principle was justified on the basis that its fragmentation amounted to a form of decolonisation,[72] and furthermore, that there was an agreement by its republics that internal federal borders were to be future internal borders.[73] A closer analysis of the facts reveals that both of these suggestions are without merit.

The suggestion that the SFRY represented a form of colonisation by Serbia vis-à-vis the seceding republics, and that therefore the principle of uti possidetis juris was appropriate to the ‘decolonisation’ of the SFRY,[74] cannot be sustained for the following reasons. First, colonialism has been understood consistently by the UN as applying to ‘overseas’ colonies, and does not apply to states that may have been constituted as the result of territorial expansion into adjacent areas such as the Union of Soviet Socialist Republics (‘USSR’).[75] Thus, in 1960 the UN General Assembly decided that the process of decolonisation pursuant to the right to self-determination related to ‘territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it’.[76] Second, according to ordinary usage, ‘colony’ means territory which a state has made legally dependent without conferring the same legal status upon the indigenous population as upon the population of its own territory.[77] In the case of the SFRY this was manifestly not the case. Lands not forming part of pre-World War I Serbia all made the decision to seek unification with Serbia after World War I to form the Yugoslav state,[78] and in all subsequent Yugoslav constitutions all citizens were subject to the same provisions.[79]

The suggestion that there was an agreement by the various Yugoslav republics that there would be no unilateral changes to borders and that this impliedly invoked the principle of uti possidetis juris[80] is based upon a statement made by a representative of the chairman of the EC Conference on Yugoslavia following a meeting which was attended by the Presidents of Serbia and Croatia and the Defence Minister of the SFRY at The Hague on 4 October 1991 (‘Hague Statement’).[81] The Hague Statement noted that agreement had been reached between the parties aimed at providing a peaceful political solution to the Yugoslav crisis. A twin-track policy approach was agreed to. Its first provision was for certain measures to be taken in relation to the military circumstances on the ground. Secondly, there was a political aspect which stipulated:

It was agreed that the involvement of all parties concerned would be necessary to formulate a political solution on the basis of the perspective of recognition of the independence of the republics wishing it, at the end of the negotiating process conducted in good faith. The recognition would be granted in the framework of a general settlement, and have the following components:

1. A loose association or alliance of sovereign or independent republics.
2. Adequate arrangements to be made for the protection of minorities including human rights guarantees and possibly special status for certain areas.
3. No unilateral changes to borders.[82]

The Hague Statement was made by the responsible EC representative who had acted as chairman of the meeting. It was not the subject of a formally executed document. Nor was the meeting that led to the Hague Statement attended by representatives from the other republics of the SFRY, namely Slovenia, Bosnia-Hercegovina, Montenegro and Macedonia. In the absence of a formally executed document it cannot be said that the Hague Statement was legally binding upon the republics whose delegates were at the meeting. Nor was it legally binding upon those republics not represented at the meeting. On 18 October 1991 five of the SFRY’s republics signed the so-called ‘Carrington Draft Convention’ in which they agreed that a general settlement of the crisis would involve ‘recognition of the independence, within the existing borders, unless otherwise agreed, of those republics wishing it’.[83] Significantly, Serbia refused to sign this document.

Even if the Hague Statement is accepted as having legal effect as from 4 October 1991, it would no longer have been legally binding by the end of 1991, by which time four republics had made applications for international recognition by the EC in the wake of the meeting of EC Foreign Ministers on 16 December 1991, who had issued guidelines for international recognition for any Yugoslav republic seeking such recognition. Recognition was clearly not within the ‘framework of a general settlement’ that required ‘a loose association or alliance of sovereign and independent states’ as required by the Hague Statement.[84] This effectively meant a violation of the Hague Statement and would have discharged any republic from further compliance with its terms. In effect, as at the end of 1991, there was no basis upon which it could be argued that there was in place a legally binding agreement to the effect that the republics of the SFRY had agreed that pre-secession internal federal borders would be future international borders. Accordingly, there was no basis to argue that the Yugoslav republics had adopted the principle of uti possidetis juris.

Indeed, the move by the EC to recognise the republics effectively ruled out the possibility of any general settlement on the Yugoslav crisis being negotiated without the use of force or coercion. This has been conceded by Lord Carrington, who later noted that the EC decision on recognition ‘changed the whole nature of the Conference ... [on Yugoslavia, removing] the one real instrument to keep the parties engaged in the negotiating process’,[85] namely the prospect of recognition.

A final comment on the issue of whether the principle of uti possidetis juris is a justified basis for the Badinter Borders Principle relates to its function in the context of border disputes following decolonisation. In Latin America and Africa the function of uti possidetis juris was to provide a mutually agreeable means of resolving disputes that were fundamentally different from the disputes that arose in the context of the secessions of republics from the SFRY. In Latin America and Africa, when the principle of uti possidetis juris was applied, there was no dispute that the former colonial borders would be future international borders. The principle of uti possidetis juris was applied in the arbitration process to resolve differences between neighbouring states who could not agree on the exact location of colonial border lines.[86]

In the SFRY there was never any dispute about the location of the exact border lines between the various republics at the time of secession. What was in dispute was the question of whether these lines should be future international borders. Agreement that existing colonial borders were to be international borders was a precondition to the application of uti possidetis juris in the decolonisation context in Latin America and Africa. The principle of uti possidetis juris was not relevant to the resolution of a dispute as to whether existing colonial borders should be future international borders. Thus, in the context of the SFRY, the principle of uti possidetis juris was of no relevance, given that the issue in dispute was not the location of internal federal borders, but rather, whether they should be future international borders. If the internal federal borders of the SFRY were to be future international borders, the principle of uti possidetis juris was irrelevant because the location of those borders was not in dispute.

D Article 5 of the Constitution of the SFRY 1974

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 Constitution of the SFRY 1974. 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.[87]

In referring to article 5, the Badinter Commission was again guilty of selective quoting. Article 5 stipulates:

(1) The territory of the [SFRY] is indivisible (jedinstvena) 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 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, article 5 provides no support for the application of the Badinter Borders Principle to the fragmentation of the SFRY.[88]

Based upon the above analysis of the reasoning of the Badinter Commission in Opinion No 3 it can be concluded 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.

IV IS THE BADINTER COMMISSION APPROACH APPROPRIATE?

Even if one rejects the legal reasoning of the Badinter Commission, it is nevertheless legitimate to question whether or not there are other reasons which justify the Badinter Borders Principle. It has been suggested that, apart from the reasoning of the Badinter Commission in Opinion No 3, such other reasons do exist.

The authors of the Quebec Report took the view that international practice in the wake of recent secessions supported the Badinter Borders Principle approach.[89] The Quebec Report referred to statements by international organisations made in the context of the break-up of the SFRY and the USSR. Included in this list is reference to the EC Guidelines on Recognition of former republics of the USSR and the SFRY announced on 16 December 1991.[90]

However, the Quebec Report fails to note that the EC issued a statement on 31 December 1991 in the context of the USSR and recognition of its republics which stated: ‘Recognition shall not be taken to imply acceptance by the European Community and its Member States of the position of any of the republics concerning territory which is the subject of a dispute between two or more republics.’[91] This statement clearly indicates that internal federal borders are not automatically to be taken as international borders following secession or the dissolution of an internationally recognised state.

It can also be noted that there has been considerable condemnation of the approach taken by the EC in recognising the former Yugoslav republics as independent states within existing federal borders. No convincing reasons were given for the maintenance of internal borders as international borders, apart from the unacceptability of the use of force to change them.[92] Lord Owen, the former Co-Chairman of the Steering Committee of the International Conference on the Former Yugoslavia, has expressed the view that adhering ‘unyieldingly’ to internal borders was a ‘folly’ and that the EC’s rejection of a Belgian proposal to redraw borders was incomprehensible, with the consequence that:

The refusal to make these borders negotiable greatly hampered the EC’s attempt at crisis management in July and August 1991 and subsequently put all peacemaking from September 1991 onwards within a straightjacket that greatly inhibited compromises between the parties in the dispute.[93]

France’s then President, François Mitterand, also expressed criticism of the decision to recognise the seceding Yugoslav republics before questions of borders had been resolved.[94] What these statements show is that the international practice referred to in the Quebec Report amounted to bad practice.

One of the authors of the Quebec Report, Malcolm Shaw, has argued that the application of the principle of uti possidetis juris to both colonial and non-colonial cases is justified by the common concern

to minimize threats to peace and security, whether internal, regional or international, by establishing an acceptable rule of the appropriate territorial framework for the creation of new States and thus entrenching, at least, territorial stability at the critical moment.[95]

Shaw’s justification cannot be accepted for a number of reasons.

First, it is questionable whether threats to peace and security have been minimised to an extent that would warrant such a justification.[96] In Latin America, war and threats of war were often the basis of settling border disputes. The most significant of such wars have been the War of the Pacific (1879–83)[97] and the Chaco War (1932–35).[98] These wars, rather than the principle of uti possidetis, resolved border disputes. In Africa the principle of uti possidetis juris, as reflected in the 1964 OAU Resolution, has not prevented violent conflict. Such conflicts include the failed secessionist wars relating to Katanga from the Congo (1960–63)[99] and Biafra from Nigeria (1967–70),[100] the successful war of secession of Eritrea from Ethiopia (1974–93)[101] and the ongoing secessionist war of Southern Sudan from Sudan.[102] In addition, there have been many border disputes such as those between Somalia and Ethiopia,[103] Nigeria and Cameroon,[104] and most recently, Ethiopia and Eritrea.[105]

In the case of the SFRY the insistence on maintaining internal federal borders not only failed to preclude or minimise violence after the secessions of Slovenia and Croatia, and later Bosnia-Hercegovina and Macedonia, but served to prolong it. Robert Hayden has correctly observed that to maintain former internal federal borders as inviolable international borders, where a large proportion of the population rejects them, results in the international community being required to support a war of conquest in order to maintain such borders. The consequences of such a war are either the forced imposition of these borders upon the rebel population, or its forced expulsion.[106] This observation is amply illustrated in the cases of the Serb populations of Croatia and Bosnia-Hercegovina. In the former case the great majority of Serbs was expelled from Croatia, especially as the result of the two Croatian military offensives in mid-1995.[107] These offensives were carried out in violation of existing UN Security Council resolutions and with the tacit support of the United States of America, the world’s only superpower.[108] In the case of Bosnia-Hercegovina, the UN authorised a NATO bombing campaign against the Serbs in August–September 1995, which was directed at forcing the Serbs to submit to negotiations to end the war on the condition that Bosnia-Hercegovina’s republic borders were accepted as its international borders, albeit with a de facto partition of that state into separate Muslim–Croat and Serb ‘entities’.[109]

These cases call into question whether the principle of uti possidetis juris does minimise threats to peace and security or whether it is a cause of such threats.[110]

Second, Shaw refers to uti possidetis as establishing an ‘acceptable’ border rule.[111] What he fails to amplify is the question of ‘appropriate to whom?’ The litany of wars and threats of war that the principle of uti possidetis has failed to prevent indicates that in each of these disputes one of the sides deemed the principle of uti possidetis unacceptable. In the case of Africa, the commitment of leaders to the 1964 OAU Resolution can be questioned, even though it has often been proclaimed. It must be recalled that in 1958, at the First All-African Peoples’ Conference in Accra, a resolution was passed denouncing colonial boundaries as artificial, particularly where they cut across ethnic lines, and calling for the abolition or adjustment of such boundaries based upon the true wishes of the people.[112] Morocco and Somalia refused to accept the 1964 OAU Resolution. In 1969, at an OAU meeting, Tanzania’s President Nyerere criticised the OAU’s emphasis on the inviolability of borders when he said: ‘The OAU is not a trade union of African heads of State. ... [W]e must be even more concerned about peace and justice in Africa than we are about the sanctity of the boundaries we inherited.’[113]

Despite the official stance of the OAU in support of former colonial borders and against secession, various secessionist attempts in Africa have attracted reasonable levels of support from various African states. According to Benyamin Neuberger, ‘the degree of rejection [of secession by the OAU] is often vastly exaggerated.’[114] Furthermore, in 1977 the Secretary-General of the OAU made it clear that the principle of uti possidetis was not sacrosanct and could be overruled, especially on the basis of the right to self-determination.[115]

In more recent times the inappropriateness of many of Africa’s borders is increasingly being recognised. The 1964 OAU Resolution has been criticised as mistaken and short-sighted.[116] In the 1990s state borders in Africa were increasingly under siege for a variety of reasons, including nationalism. Jeffrey Herbst believes that ‘[t]here is no reason to believe that many African citizens have a stronger commitment to their states than the people in the Soviet Union or Yugoslavia did.’[117] As Robert McCorquodale observes, ‘the principle of uti possidetis ... is a principle for governments to support their own sovereignty and their own interests and is not a principle in the people’s interests’.[118] It is thus not surprising that Ali Mazrui sees many changes to the borders of African states, with nationalism a key ingredient in many of them.[119]

Shaw’s justification of the principle of uti possidetis is indicative of the view of liberal internationalists who maintain that states can function within any borders. But as Steven Ratner points out:

[A]s much as liberal internationalists should cherish the idea of diverse peoples living together, we cannot, as John Chipman points out, ‘impose a cosmopolitan diktat’. Instead, we must acknowledge that certain new states are not currently able or willing to guarantee the human rights of minorities in discrete territories, and must consider alternatives to leaving those groups at the mercy of new governments. Cosmopolitanism must remain the goal, not only because people can then identify themselves beyond real or imagined blood lines, but also because many minorities live within areas where border changes are not feasible. But in certain instances account may have to be taken of the need to avoid leaving peoples in new states where they do not wish to be or that will not treat them with dignity.[120]

A further reason why the Badinter Borders Principle should not be accepted in cases of secession is that it does not provide any solutions to secession involving non-federal or unitary states. This is illustrated by Opinion No 2 of the Badinter Commission, where it was held that the rights to self-determination of the Serb minorities in Croatia and Bosnia-Hercegovina did not extend to include the right to alter the borders of Croatia and Bosnia-Hercegovina by means of secession.[121] This has significant implications for states dealing with minority groups. A state is unlikely to agree to federal or other decentralised state structures if by so doing it creates a basis for secession which could be avoided if the state remains a unitarist structure. If it is accepted that a federal or other decentralised state structure is a possible way of satisfying minority demands and thereby maintaining the unity of a state, unitary states are unlikely to agree to such federalisation if it means that a federal unit could, on the basis of the Badinter Commission’s Opinions, legitimately secede.[122]

This is amply illustrated by the case of Croatia before the military operations of 1995, which led to the forced expulsion of most of its Serb minority. During 1994 leaders of the Serb People’s Party in Croatia floated a proposal for a new constitutional arrangement within Croatia’s internationally recognised borders as a means of resolving the status of the Republic’s Serbs. The proposal envisaged clearly defined federal territorial units for the Serbs of Croatia.[123] This proposal was met with hostility within Croatia and was rejected on the basis that it would eventually lead to the secession of these units from Croatia, on the same basis that Croatia had seceded from the SFRY.[124] Similarly, Turkey has consistently rejected demands for a federation of Turkish and Kurdish federal units in Turkey on the ground that such a constitutional arrangement would be the first step towards secession of the Kurdish unit.[125] However, as Roland Rich has observed, if a national group with its own federal unit is entitled to secede within the borders of that federal unit, it would be strange that secession be limited to such federal units and not extended to national groups within unitary states.[126]

A final reason why the principle of uti possidetis juris should not be accepted in cases of secession or dissolution lies in the different function of internal administrative borders as opposed to international borders. As Ratner observes: ‘governments establish interstate boundaries to separate states and peoples, while they establish or recognize internal borders to unify and effectively govern a polity.’[127]

According to the International Court of Justice, in the context of internal colonial boundaries in Spanish America: ‘it has to be remembered that no question of international boundaries could ever have occurred to the minds of those servants of the Spanish Crown who established administrative boundaries.’[128]

In the Dubai–Sharjah Border Arbitration the Court of Arbitration observed as follows:

[O]ne cannot attribute the same value to a boundary which has been settled under a treaty, or as the result of an arbitral or judicial proceeding, in which independent interested Parties have had a full opportunity to present their arguments, as to a boundary which has been established by way of an administrative decision emanating from an authority which could have failed to take account of the Parties’ views and arising from a situation of inherent inequality. In the first hypothesis, except in the case of nullity, the principles of pacta sunt servanda or of res judicata could be invoked to prevent the boundary so settled being called into question. In the second hypothesis, the boundary would have been established in the majority of cases, in the interests of the administering authority, on the basis of other than legal criteria, and according to the needs of a particular political or economic context.[129]

Ratner demonstrates that one of the significant reasons for the establishment and subsequent alterations of internal borders is the role such borders play in the process of integrating a state. He refers to the changes to Quebec’s original borders within Canada as an example of this process.[130] Because Quebec claims it is entitled to secede within the bounds of its existing internal borders, Ratner legitimately poses the question of whether Quebec secessionists, in the case of Quebec’s secession from Canada, can ‘have their cake and eat it, too’.[131] These borders, which significantly increased the size of Quebec, were given to it as part of its integration process into Canada.[132] A similar process was at play in the case of the SFRY. Its internal borders established after World War II, according to Milovan Djilas, were never intended to be international borders.[133] According to the Yugoslav leader Josip Broz Tito, internal republic borders were ‘only an administrative division’, having the function of unifying, rather than separating, the state.[134] If secession was seen as a possibility at the time when internal borders were being drawn, it is likely that different lines would have been drawn. Yet when four republics seceded from the SFRY the ruling of the Badinter Commission allowed them, in Ratner’s words, to ‘have their cake and eat it, too’.

V IN LIEU OF A CONCLUSION

To insist, in cases of secession from a federal state, that internal federal borders automatically should become international borders is to establish the Badinter Borders Principle as a new rule of international law. On the analysis of the legal reasoning adopted by the Badinter Commission in Opinion No 3 this rule has no principled foundation in international law. More fundamentally, irrespective of whether this new rule of international law is or is not soundly based in international law, it is, in political and practical terms, too simplistic and inflexible as is amply illustrated in the case of the fragmentation of the SFRY.

In dealing with secession from federal states a more flexible approach is required. The overriding concerns in such cases are twofold. The first concern should be the greatest possible minimisation of violence.[135] The second concern should be that recognition of independence should not be granted to any secessionist movement unless the latter has convinced the international community that it has in place, and will honour, international norms on human and minority rights.[136] In some situations the recognition of statehood within existing internal federal borders will be appropriate. The case of Slovenia, because of its homogeneous Slovene population, is a case in point. Another is the hypothetical unilateral secession of Scotland from the United Kingdom.

However, in cases where the impulse for secession is driven by nationalist ideology, and where federal borders cut across national lines, more sophisticated measures need to be undertaken to ascertain international borders. At a time of revolutionary transformation of the kind that occurred in the SFRY, the right of peoples to self-determination should be recognised. In applying this principle, internationally supervised plebiscites in contested areas could be organised. Commonsense limitations based upon geography would need to be taken into consideration together with plebiscite results.[137] It may even be necessary to facilitate orderly and voluntary transfers of parts of the population.[138] The aim of such measures would be to establish borders which would result in the maximum number of persons being located on their preferred side of the line, while at the same time achieving this end without the violence that led to the same result in the case of the fragmentation of the SFRY.

It may be suggested by some that the above approaches effectively condone the creation of new nationally homogeneous states and legitimise a form of ‘ethnic cleansing’. However, such criticisms are misguided. They assume that a nationally homogeneous state is in itself a bad thing. The exploration of this assumption is beyond the scope of this article, but it can be noted that it has long attracted a spectrum of views amongst international lawyers, political scientists and philosophers.[139] Ratner is correct to point out that, whilst the ideal of liberal internationalists is laudable, there must be a recognition that the idea of diverse peoples living in one state is not always possible and that ‘in certain instances account may have to be taken of the need to avoid leaving peoples in new states where they do not wish to be or that will not treat them with dignity.’[140] He also notes that redrawing borders along national lines can in some cases assist in the process of facilitating the growth of democracy. More persons will belong to and be part of states to which they feel a sense of commitment, and they are more likely to have a positive attitude towards participation in that state’s political processes.[141] However, even if the proposition that nationally homogeneous states are a bad thing is accepted, the application of the Badinter Borders Principle does not necessarily mean that multinational states will emerge as the result of secession. If a seceding federal unit is nationally homogeneous, a nationally homogeneous state will emerge. Slovenia serves as an illustration.

More importantly, in the case of a multinational unit within a federation in which a majority national group resolves that the federal unit will secede, recognition of that unit within existing federal borders is, on the evidence of the secessions and recognition of Croatia and Bosnia-Hercegovina, likely to facilitate violent ‘ethnic cleansing’. The result will be either a nationally homogeneous state, or a de facto partition of the state along national lines. Croatia serves as an example of the former and Bosnia-Hercegovina is an example of the latter. The consequences of applying the Badinter Borders Principle were disastrous for the SFRY. While any solution to the question of borders presents its own particular problems, it is suggested that an approach based upon plebiscites and orderly and voluntary transfers of persons represents a far more palatable alternative to the approach taken in the case of the SFRY, if only because fewer lives are likely to be lost and shattered. As Hurst Hannum concludes:

Self-determination should be concerned primarily with people, not territory. ... If our concern is with peoples rather than territories, there is no reason to regard existing administrative or ‘republic’ boundaries within states as sacrosanct. In most cases, the best way of determining the wishes of those within a new state would be through a series of plebiscites to redraw what were formerly internal boundaries. ... Accepting the possibility of altering borders might be a useful precondition for recognition of a new state whenever a significant proportion of the population appears not to support the new borders.[142]

[*] BA, LLB, PhD (Sydney), Dip Ed (SCAE); Lecturer, Division of Law, Macquarie University.

[1] Allen Buchanan, ‘Self-Determination, Secession, and the Rule of Law’ in Robert McKim and Jeff McMahan (eds), The Morality of Nationalism (1997) 301, 301.

[2] James Crawford, The Creation of States in International Law (1979) 247.

[3] Gordon Craig and Alexander George, Force and Statecraft: Diplomatic Problems of Our Time (3rd ed, 1995) 146; Hurst Hannum, ‘The Specter of Secession, Responding to Claims for Ethnic Self-Determination’ (1998) 77(2) Foreign Affairs 13, 13.

[4] For a list of most contemporary self-determination claims see Morton Halperin and David Scheffer with Patricia Small, Self-Determination in the New World Order (1992) 123–60.

[5] Some of the major studies include Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (1991); Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (1995); Jorri Duursma, Fragmentation and the International Relations of Micro-States: Self-Determination and Statehood (1996); Christian Tomuschat (ed), Modern Law of Self-Determination (1993); Donald Clark and Robert Williamson (eds), Self-Determination: International Perspectives (1996); Thomas Musgrave, Self-Determination and National Minorities (1997); Catherine Brölmann, René Lefeber and Marjoleine Zieck (eds), Peoples and Minorities in International Law (1993); Dov Ronen, The Challenge of Ethnic Conflict, Democracy and Self-Determination in Central Europe (1997); Mortimer Sellers (ed), The New World Order: Sovereignty, Human Rights and the Self-Determination of Peoples (1996); Milica Bookman, The Economics of Secession (1992); Daniel Moynihan, Pandaemonium: Ethnicity in International Politics (1993); David Miller, On Nationality (1995).

[6] EC, ‘Declaration on Yugoslavia’, 27 August 1991, reproduced in Snežana Trifunovska (ed), Yugoslavia through Documents, from Its Creation to Its Dissolution (1994) 333, 333–4.

[7] EC, ‘Declaration on Yugoslavia’, UN Doc S/23293, Annex 1 (1991); 31 ILM 1485 (1992).

[8] EC, ‘Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’, UN Doc S/23293, Annex 2 (1991); 31 ILM 1486 (1992) (‘Guidelines on Recognition’).

[9] EC, ‘Declaration on Yugoslavia’, UN Doc S/23293, Annex 1 (1991); 31 ILM 1485, 1485–6 (1992). Slovenia declared its independence on 24 June 1991: ‘Constitutional Act of the Assembly of the Republic of Slovenia’, Focus — Special Issue (Belgrade, Yugoslavia), 14 January 1992, 97. After initially agreeing to suspend its independence declaration, Slovenia reaffirmed it on 8 October 1991. The EC recognised Slovenia on 15 January 1992: ‘Statement by the Presidency [of the European Community] on the Recognition of Yugoslav Republics’, 15 January 1992, reproduced in Trifunovska (ed), above n 6, 501, 501. Slovenia was admitted to the UN on 22 May 1992: GA Res 236, 46 UN GAOR (86th plen mtg), UN Doc A/46/L.71/Add 1 (1992). Croatia declared its independence on 25 June 1991: ‘Constitutional Decision on the Sovereignty and Independence of the Republic of Croatia’, 25 June 1991, reproduced in Trifunovska (ed), above n 6, 299, 299–301. After initially agreeing to suspend its independence declaration, Croatia reaffirmed it on 8 October 1991. The EC recognised Croatia on 15 January 1992: ‘Statement by the Presidency [of the European Community] on the Recognition of Yugoslav Republics’, 15 January 1992, reproduced in Trifunovska (ed), above n 6, 501, 501. Croatia was admitted to the UN on 22 May 1992: GA Res 238, 46 UN GAOR (86th plen mtg), UN Doc A/46/L.74/Add 1 (1992). Bosnia-Hercegovina declared its independence on 3 March 1991 and was recognised by the EC on 6 April 1992: EC, ‘Declaration on Yugoslavia’, UN Doc S/23793, Annex (1992), reproduced as ‘[Declaration on Recognition of Bosnia and Herzegovina]’ in Trifunovska (ed), above n 6, 521, 521. Bosnia-Hercegovina was admitted to the UN on 22 May 1992: GA Res 237, 46 UN GAOR (86th plen mtg), UN Doc A/46/L.73/Add 1 (1992). Macedonia declared its independence on 17 September 1991: Assembly of the Republic of Macedonia, ‘Declaration on the Sovereignty and Independence of the Republic of Macedonia’, 17 September 1991, reproduced in Trifunovska (ed), above n 6, 345, 345–7. Macedonia was admitted to the UN under the name of the Former Yugoslav Republic of Macedonia on 8 April 1993: GA Res 225, 47 UN GAOR (98th plen mtg), UN Doc A/Res/225 (1993). EC member states subsequently recognised Macedonia. The last member to do so was Greece in September 1995: Matthew Craven, ‘What’s in a Name? The Former Yugoslav Republic of Macedonia and Issues of Statehood’ [1995] AUYrBkIntLaw 4; (1995) 16 Australian Year Book of International Law 199, 206; Greece–The Former Yugoslav Republic of Macedonia: Interim Accord and Memorandum on Practical Measures Related to the Interim Accord, 13 September 1995, 34 ILM 1461. The Autonomous Province of Kosovo-Metohija, a sub-federal unit within the Republic of Serbia, declared its independence on 18 October 1991: Rexhep Ismajli, ‘The Right to Self-Determination’ in Robert Elsie (ed), Kosovo: In the Heart of the Powder Keg (1997) 195, 200. The EC refused to consider Kosovo-Metohija’s application for recognition on the basis that recognition was only available to republics of the SFRY and not autonomous provinces within republics: Miranda Vickers, Between Serb and Albanian: A History of Kosovo (1998) 252. This position was maintained in the wake of the North Atlantic Treaty Organisation (‘NATO’) bombing of the Federal Republic of Yugoslavia (‘FRY’) in early 1999 by a resolution on the problem of Kosovo-Metohija, which entailed the province remaining a part of the FRY, although with a considerable degree of autonomy: SC Res 1244, 54 UN SCOR (4011th mtg), UN Doc S/Res/1244 (1999), Annex 2; 38 ILM 1451.

[10] EC, ‘Declaration on Yugoslavia’, 27 August 1991, reproduced in Trifunovska (ed), above n 6, 333, 334. Because the Commission was a creation of the EC’s own executive, its opinions were not directed to, nor binding upon, any of the states concerned. Rather, they were delivered to the EC Conference on Yugoslavia in a consultative capacity. Nevertheless, opinions of such bodies are of considerable authority and influence, and the Commission’s opinions have been said to be ‘non-binding but authoritative statements of the relevant law’: Matthew Craven, ‘The European Community Arbitration Commission on Yugoslavia’ (1995) 66 British Year Book of International Law 333, 334.

[11] Steven Ratner, ‘Drawing a Better Line: Uti Possidetis and the Borders of New States’ (1996) 90 American Journal of International Law 590; Steven Ratner, ‘Ethnic Conflict and Territorial Claims: Where Do We Draw a Line?’ in David Wippman (ed), International Law and Ethnic Conflict (1998) 112.

[12] Malcolm Shaw, ‘The Heritage of States: The Principle of Uti Possidetis Juris Today’ (1996) 67 British Year Book of International Law 75; Malcolm Shaw, ‘Peoples, Territorialism and Boundaries’ (1997) 8 European Journal of International Law 478.

[13] Tomáš Bartoš, ‘Uti Possidetis. Quo Vadis?’ [1997] AUYrBkIntLaw 2; (1997) 18 Australian Year Book of International Law 37.

[14] Michla Pomerance, ‘The Badinter Commission: The Use and Misuse of the International Court of Justice’s Jurisprudence’ (1998) 20 Michigan Journal of International Law 31.

[15] Opinion No 3 of the Arbitration Commission of the Peace Conference on Yugoslavia, 11 January 1992, 31 ILM 1499 (‘Opinion No 3’).

[16] Ibid.

[17] Final Act of the Helsinki Conference on Security and Co-operation in Europe: Questions Relating to Security in Europe — Declaration on Principles Guiding Relations between Participating States, 1 August 1975, 14 ILM 1292, principle 4 (‘Final Act of Helsinki’).

[18] Opinion No 3, above n 15, 1500. An English translation of the Constitution of the SFRY 1974 is reproduced in The Constitution of the Socialist Federal Republic of Yugoslavia (2nd English ed, 1976) [trans of: Ustav Socijalisticke Federativne Republike Jugoslavije].

[19] Opinion No 1 of the Arbitration Commission of the Peace Conference on Yugoslavia, 29 November 1991, 31 ILM 1494.

[20] Opinion No 11 of the Arbitration Commission of the Peace Conference on Yugoslavia, 16 July 1993, 32 ILM 1587, 1588 (‘Opinion No 11’).

[21] Opinion No 3, above n 15, 1499.

[22] Opinion No 11, above n 20, 1587–9.

[23] Ibid 1587.

[24] Thomas Franck et al, L’intégrité territoriale du Québec dans l’hypothèse de l’accession à la souveraineté, Report prepared for the Quebec Department of International Relations (1992) [2.47] <http://www.mri.gouv.qc.ca/la_bibliotheque/territoire/integrite_plan_fr.html> at 8 March 2000 (copy on file with author) (‘Quebec Report’). The English translation of this report, entitled The Territorial Integrity of Quebec in the Event of the Attainment of Sovereignty, is available at <http://www.mri.gouv.qc.ca/la_bibliotheque/territoire/integrite_plan_an.html> . Alain Pellet was the principal author of the report. He was also an international law consultant to the Badinter Commission.

[25] Ibid [2.23].

[26] Ibid [2.47]. In a similar vein Jorri Duursma has suggested that ‘it serves no legal purpose to distinguish between secession, dissolution, separation or disintegration’: Duursma, above n 5, 89.

[27] Letter from Canada’s Federal Minister for Intergovernmental Affairs, Stéphane Dion, to the Premier of Quebec, Lucien Bouchard, 11 August 1997 reproduced in Stéphane Dion, Straight Talk: On Canadian Unity (1999) 189, 191. Dion restated this position in a subsequent letter of 26 August 1997 to the Deputy Premier of Quebec, Bernard Landry, reproduced in Dion, in this footnote, 195.

[28] Letter from Canada’s Federal Minister for Intergovernmental Affairs, Stéphane Dion, to the Deputy Premier of Quebec, Bernard Landry, 28 August 1997, reproduced in Dion, above n 27, 198, 199.

[29] Personal communication to the author by Canada’s Minister for Intergovernmental Affairs, Stéphane Dion, at the Jerusalem Conference in Canadian Studies, Hebrew University of Jerusalem, 30 June 1998. See also above nn 27–28.

[30] [1998] 2 SCR 217; 161 DLR (4th) 385.

[31] Ibid 239–75; 403–32.

[32] Ibid 275–91; 432–45.

[33] The Court did rule that the secession of Quebec could be achieved legally by means of a negotiated constitutional amendment and that the issue of Quebec’s borders would be a legitimate matter in such negotiations. Thus, in the case of a legal secession of Quebec its international borders would not automatically be its existing provincial borders: Peter Radan, ‘The Supreme Court of Canada and the Borders of Quebec’ [1998] AUIntLawJl 10; [1998] Australian International Law Journal 171, 173.

[34] Reference re: Secession of Quebec [1998] 2 SCR 217, 274–5, 296; 161 DLR (4th) 385, 432, 449.

[35] Ibid 290; 444.

[36] Ibid 275; 432.

[37] Crawford suggests that the use of force in cases of secession appears to be exempt from the prohibition against the use of force contained in art 2(4) of the UN Charter: Crawford, above n 2, 268–70. Crawford implies that force used in such cases is confined to the use of force by the state from which secession is sought and by the secessionists. However, as is illustrated by the case of the secessionist aspirations of the autonomous province of Kosovo-Metohija from the Federal Republic of Yugoslavia, the use of force by a third party to the dispute, in this case the member states of NATO, indicates that the implication in Crawford’s suggestion may no longer be applicable.

[38] Final Act of Helsinki, above n 17, principle 4.

[39] UN Charter art 2(4); Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res 225, 25 UN GAOR (1883rd mtg), UN Doc A/8082 (1970) principle 5; Final Act of Helsinki, above n 17, principle 3.

[40] See Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Rep 6 (‘Case Concerning the Temple of Preah Vihear’); Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v Chad) [1994] ICJ Rep 6, 45 (Shahabuddeen J) (‘Case Concerning the Territorial Dispute’); Shaw, ‘The Heritage of States’, above n 12, 81–4.

[41] Bartoš, above n 13, 73.

[42] [1962] ICJ Rep 6, 34. See also Case Concerning the Territorial Dispute [1994] ICJ Rep 6, 37; R Y Jennings, The Acquisition of Territory in International Law (1963) 70.

[43] Milenko Kreæa, The Badinter Arbitration Commission: A Critical Commentary (1993) 35.

[44] [1994] ICJ Rep 6, 45.

[45] Ibid.

[46] Bogdan Lekiæ, ‘Administrativne Granice u Jugoslaviji Posle Drugog Svetskog Rata’ (1992) 10(1–2) Istorija 20. Veka [trans: The History of the 20th Century] 145, 145.

[47] Kosta Cavoški, Half a Century of Distorted Constitutionality in Yugoslavia (1997) 7.

[48] Case Concerning the Territorial Dispute [1994] ICJ Rep 6, 84 (Ajibola J).

[49] A Berriedale Keith, Wheaton’s International Law: Volume 2 — War (7th English ed, 1944) 622–3.

[50] L D M Nelson, ‘The Arbitration of Boundary Disputes in Latin America’ (1973) 20 Netherlands International Law Review 267, 270.

[51] The text of the 1964 OAU Resolution is reproduced in Ian Brownlie, African Boundaries: A Legal and Diplomatic Encyclopaedia (1979) 11.

[52] Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States (2nd revised ed, 1947) vol 1, 501, 507; Ian Brownlie, Principles of Public International Law (4th ed, 1990) 135.

[53] L M Bloomfield, The British Honduras–Guatemala Dispute (1953) 94; L M Bloomfield, Egypt, Israel and the Gulf of Aqaba in International Law (1957) 107–8; Yehuda Blum, Historic Titles in International Law (1965) 342.

[54] Honduras Borders (Guatemala v Honduras) (1933) 2 RIAA 1307, 1322. Examples of treaties stipulating the application of uti possidetis include: Treaty of Friendship, Commerce and Navigation, 30 August 1855, Argentine Confederation–Chile, 113 ConTS 333, art 39; Treaty between Columbia and Venezuela for the Arbitration of the Boundary, 14 September 1881, 159 ConTS 87, art 1; Bonilla–Gomez Treaty: Border Demarcation Convention, 7 October 1894, Honduras–Nicaragua, 180 ConTS 347, art 2(4); Treaty of Arbitration, 30 December 1902, Bolivia–Peru, 192 ConTS 289, arts 1 and 5; Treaty of Arbitration, 16 July 1930, Guatemala–Honduras, 132 BFSP 823, art 5. In some of these cases the treaty did not specify which of the two versions of uti possidetis applied.

[55] See, eg, Boundary Treaty, 3 February 1876, Argentina–Paraguay, 150 ConTS 241; British Guiana Boundary Arbitration Treaty, 6 November 1901, Great Britain–Brazil, 190 ConTS 190. In both cases the arbitrator effectively applied the principle of uti possidetis de facto. On these two border disputes see Gordon Ireland, Boundaries, Possessions, and Conflicts in South America (first published 1938, 1971 ed) 27–34, 152–8.

[56] [1986] ICJ Rep 554 (‘Frontier Dispute Case’).

[57] Ibid 557. The Special Agreement is reproduced at 557–8.

[58] Ibid 565.

[59] [1992] ICJ Rep 383.

[60] Case Concerning the Territorial Dispute [1994] ICJ Rep 6, 89 (Ajibola J). See also Dubai–Sharjah Border Arbitration (1981) 91 ILR 543, 578; Santiago Torres Bernárdez, ‘The “Uti Possidetis Juris Principle” in Historical Perspective’ in Konrad Ginther et al (eds), Völkerrecht zwischen normativem Anspruch und politischer Realität: Festschrift für Karl Zemanek zum 65. Geburtstag (1994) 420–1 [trans: International Law between Normative Claims and Political Reality: Festschrift in Honour of Karl Zemanek’s 65th Birthday].

[61] Opinion No 3, above n 15, 1500.

[62] Bernárdez refers to the ‘misrepresentations of the reasoning’ of the Frontier Dispute Case: Bernárdez, above n 60, 435.

[63] Frontier Dispute Case [1986] ICJ Rep 554, 565.

[64] Ibid.

[65] Ibid 566.

[66] Ibid 565.

[67] Kreæa, above n 43, 36–7.

[68] Craven, ‘The European Community Arbitration Commission’, above n 10, 388; Ratner, ‘Drawing a Better Line’, above n 11; Kreæa, above n 43, 36.

[69] Bernárdez, above n 60, 434. Craven refers to the Badinter Commission’s ‘novel extension of the uti possidetis principle outside the context of decolonization’: Craven, ‘The European Community Arbitration Commission’, above n 10, 386. See also Musgrave, above n 5, 234–5; Hurst Hannum, ‘Self-Determination, Yugoslavia, and Europe: Old Wine in New Bottles?’ (1993) 3 Transnational Law & Contemporary Problems 57; Ratner, ‘Drawing a Better Line’, above n 11, 614.

[70] Shaw, ‘Peoples, Territorialism and Boundaries’, above n 12, 496–8.

[71] Ibid 497.

[72] Mitchell Hill, ‘What the Principle of Self-Determination Means Today’ (1995) 1 ILSA Journal of International & Comparative Law 120, 131.

[73] See below n 81 and accompanying text.

[74] Hill, above n 72, 131. For a neo-colonialist account of Yugoslav history see Anton Bebler, ‘Yugoslavia’s Variety of Communist Federalism and Her Demise’ (1993) 26 Communist and Post-Communist Studies 72. The neo-colonialism argument in relation to Canada and Quebec has been rejected by the Canadian Supreme Court: Reference re: Secession of Quebec [1998] 2 SCR 217, 287; 161 DLR (4th) 385, 442. See also Thomas Carey, ‘Self-Determination in the Post-Colonial Era: The Case of Quebec’ (1977) 1 ASILS International Law Journal 47, 67–70. It has been suggested that the secession of Bangladesh can be justified as an example of neo-colonialism: Crawford, above n 2, 116.

[75] Philip Kunig, ‘Decolonization’ in Rüdiger Wolfrum (ed), United Nations Law, Politics and Practice (new revised English ed, 1995) vol 1, 390, 390.

[76] GA Res 1541, 15 UN GAOR (948th mtg), UN Doc A/Res/4651 (1960). This definition is sometimes referred to as the ‘salt-water’ theory of colonialism: Rupert Emerson, From Empire to Nation: The Rise to Self-Assertion of Asian and African Peoples (1962) 310; Benyamin Neuberger, National Self-Determination in Postcolonial Africa (1986) 84.

[77] Kunig, above n 75, 390.

[78] On the creation of the Yugoslav state see Wayne Vucinich, ‘The Formation of Yugoslavia’ in Dimitrije Djordjevic (ed), The Creation of Yugoslavia, 1914–1918 (1980) 183.

[79] Robert McCorquodale, ‘Self-Determination beyond the Colonial Context and Its Potential Impact on Africa’ (1992) 4 African Journal of International and Comparative Law 592, 601.

[80] James Gow, Triumph of the Lack of Will: International Diplomacy and the Yugoslav War (1997) 55–6.

[81] ‘Meeting Held at Ministry of Foreign Affairs, The Hague on 4 October 1991’, Focus — Special Issue (Belgrade, Yugoslavia), 14 January 1992, 169 (‘Meeting of 4 October 1991’).

[82] Ibid.

[83] ‘Agreements for a General Settlement’, UN Doc S/23169, Annex 6 (1991), reproduced as ‘Peace Conference on Yugoslavia: Arrangements for General Settlement [the so-called Carrington Draft Convention]’ in Trifunovska (ed), above n 6, 357, 357.

[84] ‘Meeting of 4 October 1991’, above n 81, 169.

[85] Lord Carrington, ‘Turmoil in the Balkans: Developments and Prospects’ (1992) 137(5) Royal United Services Institute Journal 1, 1. Similar concerns were voiced by UN Secretary-General Xavier Perez de Cuellar. Given that the Secretary-General’s views against premature recognition of the seceding republics were endorsed by the UN Security Council, the EC’s decision to recognise has been described by Lori Fisler Damrosch as ‘legally suspect’ and ‘a derogation from the authority of UN organs in the sphere of international peace and security’: quoted in Steven Burg and Paul Shoup, The War in Bosnia-Herzegovina: Ethnic Conflict and International Intervention (1999) 94–5.

[86] See generally Shaw, ‘The Heritage of States’, above n 12, 98–105.

[87] Opinion No 3, above n 15, 1500.

[88] Kreæa, above n 43, 39–40.

[89] Franck et al, above n 24, [2.47].

[90] EC, ‘Guidelines on Recognition’, UN Doc S/23293, Annex 2 (1991); 31 ILM 1486 (1992).

[91] ‘Recognition of Former Soviet Republics’ (1991) 24(12) Bulletin of the European Communities 121, [1.4.13].

[92] John Williams, Legitimacy in International Relations and the Rise and Fall of Yugoslavia (1998) 121.

[93] David Owen, Balkan Odyssey (1995) 33. See also Ratner, ‘Ethnic Conflict and Territorial Claims’, above n 11, 114.

[94] Walter Roberts, ‘The Tragedy in Yugoslavia Could Have Been Averted’ in Raju Thomas and H Richard Friman (eds), The South Slav Conflict: History, Religion, Ethnicity, and Nationalism (1996) 363, 370. Craven, whilst giving qualified support to the approach of the Badinter Commission, nevertheless doubted ‘whether in the long term it is a technique which will provide a permanent and pacific settlement to the underlying territorial disputes’: Craven, ‘The European Community Arbitration Commission’, above n 10, 388.

[95] Shaw, ‘The Heritage of States’, above n 12, 111.

[96] ‘[A] stable world order may not always be achieved by a rigorous application of the principle of uti possidetis’: Jan Klabbers and René Lefeber, ‘Africa: Lost between Self-Determination and Uti Possidetis’ in Catherine Brölmann, René Lefeber and Marjoleine Zieck (eds), Peoples and Minorities in International Law (1993) 37, 38. See also Michael Freeman, ‘National Self-Determination, Peace and Human Rights’ (1998) 10 Peace Review 157, 158–9.

[97] On the War of the Pacific see William Jefferson Dennis, Tacna and Arica: An Account of the Chile-Peru Boundary Dispute and the Arbitrations of the United States (1931); J Valerie Fifer, Bolivia: Land Location and Politics since 1825 (1972) 32–91.

[98] On the Chaco War see Ireland, above n 55, 66–95; L Woolsey, ‘The Bolivia–Paraguay Dispute’ (1929) 23 American Journal of International Law 110; L Woolsey, ‘The Bolivia–Paraguay Dispute’ (1930) 24 American Journal of International Law 122; L Woolsey, ‘The Settlement of the Chaco Dispute’ (1939) 33 American Journal of International Law 126; Fifer, above n 97,

212–18.

[99] On the Katanga secession see Jules Gérard-Libois, Katanga Secession (Rebecca Young trans, 1966); Alexis Heraclides, The Self-Determination of Minorities in International Politics (1991) 58–79.

[100] On the Biafra secession see Charles Nixon, ‘Self-Determination: The Nigeria/Biafra Case’ (1972) 24 World Politics 473; Heraclides, above n 99, 80–106.

[101] On the Eritrea secession see Ruth Iyob, The Eritrean Struggle for Independence: Domination, Resistance, Nationalism, 1941–1993 (1995); Heraclides, above n 99, 177–95.

[102] On the Southern Sudan secession see Angela Lloyd, ‘The Southern Sudan: A Compelling Case for Secession’ (1994) 32 Columbia Journal of Transnational Law 419; Heraclides, above n 99, 107–28.

[103] See W Michael Reisman, ‘Somali Self-Determination in the Horn: Legal Perspectives and Implications for Social and Political Engineering’ in I M Lewis (ed), Nationalism & Self Determination in the Horn of Africa (1983) 151; Richard Greenfield, ‘Towards an Understanding of the Somali Factor’ in Peter Woodward and Murray Forsyth (eds), Conflict and Peace in the Horn of Africa: Federalism and Its Alternatives (1994) 103.

[104] This dispute has been referred to the International Court of Justice. On the background to this dispute see Njinkeng Bekong, ‘International Dispute Settlement: Land and Maritime Boundary between Cameroon and Nigeria — Origins of the Dispute and Provisional Measures’ (1997) 9 African Journal of International and Comparative Law 287.

[105] Martin Plaut, ‘On the Map’ (1998) 54 The World Today 191.

[106] Robert Hayden, ‘Bosnia’s Internal War and the International Criminal Tribunal’ (1998) 22(1) The Fletcher Forum of World Affairs 45, 49. See also Ratner, ‘Ethnic Conflict and Territorial Claims’, above n 11, 114; Williams, above n 92, 140–1.

[107] Laura Silber and Allan Little, Yugoslavia: Death of a Nation (revised ed, 1997) 353–60; Damir Mirkoviæ, ‘Croatian Liberation of Western Slavonia and Krajina’ (1998) 30(1) Peace Research 14.

[108] Wayne Bert, The Reluctant Superpower: United States’ Policy in Bosnia, 1991–95 (1997)

222–3; Gregory Elich, ‘The Invasion of Serbian Krajina’ in Ramsey Clark et al, Nato in the Balkans: Voices of Opposition (1998) 131, 131.

[109] In his memoirs Richard Holbrooke, the US Assistant Secretary of State for European and Canadian Affairs, concedes that the NATO action was aimed at forcing the submission of the Serbs. During the NATO campaign and the parallel ground offensive by forces from Croatia and the Muslim–Croat coalition in Bosnia-Hercegovina, Holbrooke said to the Croatian Defence Minister, Gojko Šušak: ‘Gojko, I want to be absolutely clear. Nothing we said today should be construed to mean that we want you to stop the rest of the offensive, other than Banja Luka. Speed is important. We can’t say so publicly, but please take Sanski Most, Prijedor, and Bosanski Novi. And do it quickly, before the Serbs re-group!’: Richard Holbrooke, To End a War (1998) 166.

[110] Craven, ‘The European Community Arbitration Commission’, above n 10, 388.

[111] Shaw, ‘The Heritage of States’, above n 12, 111.

[112] A Oye Cukwurah, ‘The Organisation of African Unity and African Territorial and Boundary Problems: 1963–1973’ (1973) 13 Indian Journal of International Law 176, 179–82; Yilma Makonnen, International Law and the New States of Africa: A Study of the International Legal Problems of State Succession in the Newly Independent States of Eastern Africa (1983) 458–9.

[113] Quoted in Carey, above n 74, 66. Nyerere’s comments were made in the context of Tanzania’s recognition of Biafra. Nyerere’s defence of Biafra’s secession was based on the principles that included the right to secede being made a basic constitutional right: Neuberger, above n 76,

78–9.

[114] Neuberger, above n 76, 80–1, referring to the states in Africa which supported secessionist attempts in the Congo, Ethiopia, Sudan, Angola, Ghana and Nigeria.

[115] Klabbers and Lefeber, above n 96, 63.

[116] See Seyoum Hameso, Ethnicity and Nationalism in Africa (1997) 70–4; Josiah Cobbah, ‘Toward a Geography of Peace in Africa: Redefining Sub-State Self-Determination Rights’ in R J Johnston, David Knight and Eleonore Kofman (eds), Nationalism, Self-Determination and Political Geography (1988) 70; Makau wa Mutua, ‘Why Redraw the Map of Africa: A Moral and Legal Inquiry’ (1995) 16 Michigan Journal of International Law 1113. In the case of Nigeria it has been argued that partition along national lines is the only way to reduce human rights violations and to ensure citizen participation in the governing processes for Nigeria’s multinational population: Okechukwu Oko, ‘Partition or Perish: Restoring Social Equilibrium in Nigeria through Reconfiguration’ (1998) 8 Indiana International & Comparative Law Review 317. On the other hand Ezetah argues that an expanded notion of self-determination leading to a loose federation based upon ‘ethno-cultural autonomy’ is the appropriate solution to Nigeria’s problems. Ezetah suggests this is necessary because ‘the principle of uti possidetis in Africa may well have become a necessary evil’: Chinedu Reginald Ezetah, ‘International Law of Self-Determination and the Ogoni Question: Mirroring Africa’s Post-Colonial Dilemma’ (1997) 19 Loyola of Los Angeles International & Comparative Law Journal 811, 855.

[117] Jeffrey Herbst, ‘Challenges to Africa’s Boundaries in the New World Order’ (1992) 46 Journal of International Affairs 17, 24.

[118] McCorquodale, above n 79, 607 (emphasis in original).

[119] Ali Mazrui, ‘The Bondage of Boundaries’, The Economist — Special Supplement (London, United Kingdom), 11 September 1993, 28.

[120] Ratner, ‘Drawing a Better Line’, above n 11, 617 (citations omitted).

[121] Opinion No 2 of the Arbitration Commission of the Peace Conference on Yugoslavia, 11 January 1992, 31 ILM 1497.

[122] Marc Weller, ‘The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia’ (1992) 86 American Journal of International Law 569, 606; Hurst Hannum, ‘Rethinking Self-Determination’ (1993) 34 Virginia Journal of International Law 1, 39.

[123] The proposal as outlined by Milan Djukiã, the leader of the Serb People’s Party, was largely modelled on the constitutional arrangements for the Åland Islands of Finland, where the Swedish population of the island has a considerable degree of autonomy pursuant to the Act on the Autonomy of Åland 1991 (Finland and Åland). On the Åland autonomy arrangements and for a reproduction of the Act on the Autonomy of Åland 1991 see Hurst Hannum (ed), Documents on Autonomy and Minority Rights (1995) 115, 117; Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (revised ed, 1996) 370. Djukiæ publicly outlined his views in a newspaper interview: ‘Srpskih Je Škola u Zagrebu Bilu i Prije, Pa Nema Razloga Da Ih Opet Ne Bude!’, Globus (Zagreb, Croatia) 8 April 1994. The concept of a federal structure was also suggested by some opposition leaders in Croatia.

[124] See, eg, ‘Hrvatska Je Država Konstantna Vrijednost: Interview: Veselin Pejinoviæ’, Danas (Zagreb, Croatia), 6 September 1994; Tihomir Dujmoviæ, ‘Federaliziranu Hrvatsku Ne Mogu Ni Zamisliti! Interview: Damir Zoriæ’, Danas (Zagreb, Croatia), 20 September 1994, 20; Tihomir Dujmoviæ, ‘Što Nam to Govore’, Nedeljna Dalmacija, Broj 1222 (Split, Croatia), 30 September 1994.

[125] Jeri Laber, ‘The Hidden War in Turkey’ (1994) 41(12) New York Review of Books 47.

[126] Roland Rich, ‘Recognition of States: The Collapse of Yugoslavia and the Soviet Union’ (1993) 4 European Journal of International Law 36, 61.

[127] Ibid 62. See also Shaw, ‘Peoples, Territorialism and Boundaries’, above n 12, 490.

[128] Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) [1992] ICJ Rep 383, 388. See also Dubai–Sharjah Border Arbitration (1981) 91 ILR 543, 579.

[129] Dubai–Sharjah Border Arbitration (1981) 91 ILR 543, 579.

[130] Ratner, ‘Drawing a Better Line’, above n 11, 603. See also Bartoš, above n 13, 86–8.

[131] Ratner, ‘Drawing a Better Line’, above n 11, 607. At the time of Canada’s formation Quebec was approximately one-third of its present area. Extensions to its territory were carried out in 1898 and 1912. These extensions comprised land overwhelmingly populated by Aboriginal peoples. Aboriginal peoples in Quebec argue that if the Canadian government allowed those territories added to Quebec in 1898 and 1912 to become part of an independent Quebec without their consent, it would be a violation of Canadian government obligations and undertakings to the Aboriginal peoples as set out in the James Bay and Northern Quebec Agreement 1975 as approved and given effect by Canada’s adoption of the James Bay and Northern Quebec Native Claims Settlement Act, SC 1976–77, c 32 and Quebec’s adoption of the Act Approving the Agreement Concerning James Bay and Northern Quebec, SQ 1976, c 46. On these territorial extensions and the 1975 Agreement see Grand Council of the Crees, Sovereign Injustice: Forcible Inclusion of the James Bay Crees and Cree Territory into a Sovereign Quebec (1995) 199–217, 249–95. At the time of the 1995 sovereignty referendum in Quebec, the Inuit and Cree peoples organised their own referenda. The vote in both was over 95 per cent against Quebec sovereignty: Robert Young, The Struggle for Quebec: From Referendum to Referendum? (1999) 29–30.

[132] Ratner, ‘Drawing a Better Line’, above n 11, 607.

[133] Owen, above n 93, 34–5.

[134] ‘Iz govora Generalnog Sekretara KPJ JB Tita na osnivaèkom kongresu KP Srbije’, 8 May 1945, in Branko Petranoviæ and Momèilo Zeèeviæ (eds), Jugoslovenski Federalizam: Ideje i Stvarnost, Tematska Zbirka Dokumenata, Drugi tom, 1943–1986 (1987) 158, 159; Frits Hondius, The Yugoslav Community of Nations (1968) 180.

[135] According to Hannum ‘the only legitimate goal consistent with the present international order is ensuring that separation or unity occurs without disturbing international peace’: Hannum, ‘The Specter of Secession’, above n 3, 14.

[136] The EC guidelines on recognition of the SFRY’s seceding republics sought such guarantees on minority and human rights: EC, ‘Declaration on Yugoslavia’, UN Doc S/23293, Annex 1 (1991); 31 ILM 1485 (1992). However, the EC was less than demanding in assessing the genuineness of the commitment to minority and human rights by some of the seceding republics. In the case of Croatia the EC was satisfied as to these matters on the strength of a letter forwarded to the President of the Badinter Commission on 13 January 1992 by Croatia’s President, confirming that Croatia was ready to accept proposals for autonomy for its Serb minority. The EC recognised Croatia two days later. In fact, Croatia’s recognition was virtually guaranteed even without this letter. Germany had decided to recognise Croatia on 19 December 1991, with implementation of the decision to be delayed to 15 January 1992. This decision left the EC with little alternative but to recognise Croatia on 15 January 1992, and the Croatian President’s letter was little more than a desperate last minute effort by the EC to avoid being embarrassed, because on 11 January 1992 the Badinter Commission, in Opinion No 5 of the Arbitration Commission of the Peace Conference on Yugoslavia, 11 January 1992, 31 ILM 1503, had recommended against recognition of Croatia on the ground of Croatia’s inadequate constitutional guarantees relating to its minority populations. For accounts of the German policy on Croatia by its then Foreign Minister and head of the Southeast European Department of the German Foreign Ministry see Hans-Dietrich Genscher, Rebuilding a House Divided: A Memoir by the Architect of Germany’s Reunification (1998) 513–16 and Michael Libal, Limits of Persuasion: Germany and the Yugoslav Crisis, 1991–1992 (1997) 84–7 respectively.

[137] Ratner, ‘Drawing a Better Line’, above n 11, 622–3; Hannum, ‘Rethinking Self-Determination’, above n 122, 56; Ved Nanda, ‘Revisiting Self-Determination as an International Law Concept: A Major Challenge in the Post-Cold War Era’ (1997) 3 ILSA Journal of International & Comparative Law 443, 451–2. Frowein suggests that plebiscites in border regions would have been appropriate in relation to Croatia and Bosnia-Hercegovina: Jochen Frowein, ‘Self-Determination as a Limit to Obligations under International Law’ in Tomuschat, above n 5, 211, 217. In relation to territorial disputes, the holding of plebiscites is not required by international law, nor is it a necessary corollary of the right to self-determination: Visuvanathan Rudrakumuran, ‘The “Requirement” of Plebiscite in Territorial Rapprochement’ (1989) 12 Houston Journal of International Law 23, 35–7.

[138] For a sustained defence of the necessity of planned population transfers see Chaim Kaufmann, ‘Possible and Impossible Solutions to Ethnic Civil Wars’ (1996) 20(4) International Security 136; Chaim Kaufmann, ‘Intervention in Ethnic and Ideological Civil Wars: Why One Can Be Done and the Other Can’t’ (1996) 6(1) Security Studies 62, 96–101. Fuller is of the view that population transfers are ‘regrettable but inevitable’: Graham Fuller, ‘Redrawing the World’s Borders’ (1997) 14(1) World Policy Journal 11, 20. See also Jan Tullberg and Birgitta Tullberg, ‘Separation or Unity? A Model for Solving Ethnic Conflicts’ (1997) 16 Politics and the Life Sciences 237, 239.

[139] See Guyora Binder, ‘The Case for Self-Determination’ (1993) 29 Stanford Journal of International Law 223; Miller, above n 5; Maurizio Viroli, For Love of Country: An Essay on Patriotism and Nationalism (1995).

[140] Ratner, ‘Drawing a Better Line’, above n 11, 617. See also Michael Barutciski, ‘Politics Overrides Legal Principles: Tragic Consequences of the Diplomatic Intervention in Bosnia-Herzegovina (1991–1992)’ (1996) 11 American University Journal of International Law and Policy 767, 785–91.

[141] Ratner, ‘Ethnic Conflict and Territorial Claims’, above n 11, 122–3. For a contrary view see Robert Schaeffer, Warpaths: The Politics of Partition (1990) 253–63.

[142] Hannum, ‘The Specter of Secession’, above n 3, 15, 17–18.