To those whose focus of attention does not extend past the United States and Western Europe, the world may seem like a system of old and stable states. But much of the contemporary state system is very recent. Much of Africa, Asia, and even 111
Eastern Europe is composed of relatively new, and in some cases unstable, states as a result of decolonization and the upheavals since 1990 in southeastern Europe and the former Soviet Union. The recent vintage and potential evanescence of the contemporary makeup of states means that legal issues constantly arise regarding the formation of states. The extent to which law actually controls or affects decision makers involved in the process of state formation—whether those within a putative state or those outside it deciding how to react to it—remains a central concern in the international legal process.
For at least the last 50 years, states have emerged on the global stage through the following processes:
1. Decolonization: This refers to the process by which states became indepen- dent from self-identified colonial empires, principally those of the United Kingdom and France, but also those of Spain and Portugal (principally in Latin America), Belgium, the Netherlands, Germany, the Ottoman Empire, and, to some extent, the United States. Independence might have resulted from the peaceful transfer of power (as with much of the British Empire) or wars of independence (as with French Indochina). Decolonization is virtually complete today in that nearly all colonial territories seeking independence from their metropolitan power have attained it. The United Nations has taken an active role in promoting and supervising decol- onization.
2. Secession: With secession, one territory breaks off from a nonimperial state to form a new state, either peacefully or as a result of armed conflict. Since World War II, successful secession has been rare, but not nonexistent. Bangladesh (East Pakistan) seceded from Pakistan (though its inhabitants formed the majority of Pakistan’s population) after a short but bloody war in 1971; and Eritrea seceded from Ethiopia in 1993 after a conflict lasting more than 30 years. The departure of the three Baltic states—Estonia, Latvia, and Lithuania—from the Soviet Union in 1990 may also be seen as a secession, although all three were, in fact, independent states from the end of World War I until their forced annexation by the Soviet Union in 1940, and the Soviet Union was in the process of dissolution at the time of their separation.
3. Dissolution: Dissolution is the process by which a state dissolves into two or more states, with the former state ceasing to exist. The most significant dissolutions in recent years have been those of Yugoslavia, the USSR, and Czechoslovakia, although other states (for instance, Somalia) may also be in the midst of such pro- cesses as well.
4. Merger: This is the creation of one state by the union of two states. The merger of North and South Yemen in 1990 and the merger of the Federal Republic of Germany and the German Democratic Republic in 1990 are prime examples. The two states may create an entirely new entity (Yemen), or one state may be absorbed into the second (Germany).
5. Peace Treaties: Historically, states have also emerged from peace settlements after major wars, such as the creation of new states in Eastern Europe after World War I.
In examining the formation of states as a result of the violent breakup of Yugoslavia, we confront the greatest human tragedy in Europe since World War II. This episode also challenged fundamental assumptions in international law
about the nature of statehood, the meaning of self-determination, and the role of recognition of a state by other states. As you read the following materials, consider who the decision makers are concerning the formation of new states; to what extent preexisting legal texts provided useful guidance to them; to what extent did and could they base their decisions on law at all; how different fact patterns give rise to different legal consequences; and whether there are any clear norms regarding self-determination and the formation of new states.
A. The Problem
The state once known as Yugoslavia was a product of the Allied victory of World War I. Created in 1919 in the Treaty of Saint-Germain-en-Laye as the Kingdom of the Serbs, Croats, and Slovenes, or the South Slav State, its territory consisted of the pre- World War I Serbian state and a chunk of land carved out of the Austro-Hungarian empire containing the historic territories of Croatia, Slovenia, and Bosnia- Herzegovina. Yugoslavia represented an experiment for the victorious allies and a variant on President Woodrow Wilson’s idea of self-determination of peoples: instead of giving each ethnic group its own state where it would be clearly dominant—as was done, for instance, in creating the new states of Estonia, Latvia, Lithuania, and Poland—the Allies combined several groups into one state. The challenge of Yugoslavia became making that entity function.
Before World War II, the monarchs in Yugoslavia divided it for governance purposes into 22 regions, then reallocated it into nine provinces. After World War II, the partisan leader Josip Broz (Tito) assumed power and declared a Socialist Federal Republic of Yugoslavia (SFRY). The SFRY had six republics that closely corresponded to the pre-1918 political units—Serbia, Montenegro, Macedonia, Croatia, Bosnia-Herzegovina, and Slovenia. Only Slovenia was close to ethnically uniform; each of the others contained significant minorities. Bosnia-Herzegovina did not contain a majority of any ethnic group but rather a plurality of Muslims and large populations of Serbs and Croats. Tito, an ethnic Croat, used his authoritarian rule to create a Yugoslav state and identity by suppressing nation- alist or secessionist tendencies in the republics and creating structures at the national and regional level that would balance the power of the Serbs (the largest ethnic group) with those of the other ethnic groups. (See map of the former Yugoslavia.)
Upon Tito’s death in 1980, these structures began to weaken and fall prey to nationalist leaders in Serbia, in particular Slobodan Milosevic, who sought to ensure Serb dominance of the SFRY. Nationalist sentiments grew correspondingly in two of Yugoslavia’s republics, Slovenia and Croatia, the latter under the leadership of another ultranationalist, Franjo Tudjman. In late 1990, Slovenia and Croatia declared that SFRY law would no longer apply in their territories; in June 1991 both declared independence. The Yugoslav federal army responded immediately in Slovenia by leaving its bases and attacking the Slovene militia, though the SFRY agreed under international pressure to withdraw its army from Slovenia a few weeks later. In Croatia, ethnic Serbs in the Krajina region (bordering northwestern Bosnia) and the federal Yugoslav army took up arms in the summer of 1991, with the former claiming they wished to ensure that Serb-inhabited areas would remain part of the SFRY.
The Former Yugoslavia
SOURCE:CIA World Factbook
Both the European Community (EC)—the 12 member regional organization in Western Europe*—and the Conference on Security and Cooperation in Europe—an informal organization then consisting of 33 European states as well as the United States and Canada—were caught unprepared. In August 1991, the EC announced that it would not ‘‘recognize changes of frontiers which have not been brought about by peaceful means and by agreement,’’ and called the Yugoslav army’s support of Serbs in Croatia ‘‘illegal.’’ The EC set up a Conference on Yugo- slavia as a negotiation forum that would include the SFRY federal government, the presidents of the republics, and EC representatives. The Conference also created a five-person arbitration commission to address legal questions. The latter, known as the Badinter Commission, included the heads of the constitutional courts of France, Germany, Italy, Spain, and Belgium, and was chaired by Judge Robert Badinter of
*Through the Treaty on European Union, the EC became part of a broader European Union after 1993. It currently has 25 members.
France. On September 17, Macedonia declared its independence, and on October 14, Bosnia-Herzegovina followed suit. In response, on November 10, Serbs in Serb- dominated parts of Bosnia held a referendum for a ‘‘common Yugoslav state.’’ On September 25, the UN Security Council, noting that the UN Charter ‘‘enshrined’’ the principle that territorial gains could not be brought about by force, agreed to impose an arms embargo on all of Yugoslavia.
Despite these actions and intermittent cease-fires brokered by the EC, the fight- ing in Yugoslavia quickly accelerated. Yugoslav National Army (JNA) forces, com- posed principally of Serbs, laid siege to numerous cities and towns in Croatia, including the ancient port city of Dubrovnik. JNA forces worked with Croatian Serbs to gain control of Serb-majority parts of Croatia, including the Krajina region and Eastern Slavonia (along the eastern border with Serbia). The JNA levelled the Croat city of Vukovar in Eastern Slavonia, killing 2,300 civilians. By early 1992, the war risked spreading to Bosnia.
Beyond a call to end the fighting, the EC and other key actors could not imme- diately agree on policy toward Yugoslavia. Germany and Austria favored quick recognition of the new entities, but other states, including the United States, as well as the UN Secretary-General, favored delaying recognition at least until all sides could accept certain basic principles of a future settlement. On December 16, 1991, the EC agreed on guidelines for recognition of the new states in Yugoslavia as well as the then-disintegrating USSR and invited claimants to submit requests for recognition by December 23. Immediately after Bosnia submitted its request, a self- proclaimed Assembly of the Serbian People of Bosnia-Herzegovina resolved to create a Serbian Republic of Bosnia-Herzegovina if the Bosnian government insisted on independence; in January 1992, these Bosnian Serbs declared the inde- pendence of the Serbian Republic of Bosnia-Herzegovina. Ethnic Croats also declared two new entities in Bosnia without explicitly seeking statehood.