My perspective on the Badinter arbitration commission's legal advice and it's effects on the breakup of Yugoslavia.

[u/anonumousJx]

I would like to first and foremost defend myself from bad faith comments. I am a Serb from Serbia, I have been a citizen of the Republic of Serbia my entire life and I can see why this would raise suspicion of my objectivity on this issue. Do your best to ignore my identity and read what I'm saying here. I DO NOT endorse or support projects of a Greater Serbia and I condemn all crimes committed by Serb forces during the war. My goal with this post is not to justify crimes during the previous war, nor to establish grounds for a future conflict. I respect all foreign peoples, especially neighboring countries. My goal with this post is to gather new information and hear new perspectives I might be missing. I am coming into this, not just with an open mind, but with the assumption that I am missing a key piece in my analysis and that I am wrong.

This is my current perspective, based on extensive research I've done into international and domestic Yugoslav law, as well as relevant history. Other than that, I AM NOT a credible expert on this topic. I am a software engineer, not a historian/lawyer.

The topic is not the war itself, because I don't believe there is much to talk about here. Any level minded person accepts that serious war crimes were committed by all sides, especially by Serb forces in Bosnia. What I want to talk about here is international law and how it influenced the broader political breakup of the state in the early years of the conflict.

In 1991, Slovenia and Croatia unilaterally declared independence from Yugoslavia after clear majority referendums. The declarations had democratic legitimacy (even tho Serbs boycotted the referendum in Croatia, boycotting the vote is not enough to make it illegitimate), but not legal legitimacy under Yugoslav law. The federal government declared the declarations unconstitutional. I don't think anyone disputes this. The 1974 constitution gave republics the right to independence trough majority will, but only through agreement by all 6 republics. The constitution clearly states that Yugoslavia is an indivisible union of 6 republics (and 2 provinces), that republics and province borders cannot be changed without republic/province consent and that federal borders cannot be changed without consent from all republics.

This concept is not unique to Yugoslavia. Basically every federal state treats unilateral secession as unconstitutional, including the United States.

Under international law, you need both consent from the population (majority vote on a referendum) and permission from the mother state. Like we previously established, the seceding republics had consent from the population, but not from the federal government, meaning the JNA had legal justification to restore constitutional order, as states have rights to use force within their borders.

The argument of self determination does not apply here, as it's overruled by the right of states to territorial integrity. Self determination exists as internal or external. People have a recognized right to Internal self determination, meaning meaningful autonomy and political representation within existing states, but no right to unilateral secession without mother state approval. External self determination applies to colonial states, and in rare cases as remedial secession (in cases of severe rights abuses from the mother state, think Bangladesh 1971), but otherwise territorial integrity of states is a stronger principle.

Since seceding republics did not have grounds for external self determination (no severe human rights abuses, had their own republics within Yugoslavia) and their secession was illegal under Yugoslav law, the JNA had legal grounds to prevent secession and preserve the federation.

This, however, was not what happened. The Badinter arbitration commission established in 1991 by the EC had a different take. It was established to give legal opinions to the international community (particularly in Europe) as guidance to what steps should be taken to solve the conflict. Since the process was messy and multiple different legal interpretations were thrown around, they needed an authorative body to advise them.

This wasn't a clear cut conflict, like the current war in Ukraine, where one side (Russia) is clearly acting with complete disregard to International law, where it's clear which side the international community should take. There's no room for debate here, it's as clear as day.

In 1991 the situation was different. While the Yugoslav federal government claimed what I previously explained, that their military action was justified (unconstitutional secession with no remedial grounds justifies military action under international law) the republics claimed that this was not a matter of secession, but disintegration of the SFRY trough the will of a number of republics.

So while secession was 100% considered illegal by all sides, the argument was that what Slovenia and Croatia were doing was not actually secession but disintegration.

The Badinter commission concluded that the SFRY was in a process of dissolution and that old republic borders should be recognized as new international borders (uti possidetis juris) advising the EC to recognize Slovenia as an independent state, and others conditionally that they guarantee minority rights.

My concern is that this advice was not in accordance to international law. The recognition of the republics as sovereign states violated Yugoslavia's territorial integrity. The Badinter commission worked around this, saying that the state no longer existed, hence the question of whether or not this was a matter of secession was obsolete, since states can't secede from a non existent entity. To me, this sounds like circular reasoning and appealing to practical and political solutions rather than law.

The commission recognized "de facto", on the ground facts, because doing so offered the most practical solution. Saying that Yugoslavia was in "dissolution" was a political reality, but it ignores why the state was in dissolution and sets a dangerous precedent.

The argument was:

In mid to late 1991, the federal authorities aren't functioning, Slovenia and Croatia are de facto independent with their own militaries and institutions fighting against the federal government. The federal government has no de facto control over the republics and the JNA isn't representing all republics anymore, therefore the state is in dissolution and uti possidetis juris should be applied.

My problem, again, is that this "recognition of political reality" ignores WHY the state is in dissolution and basically calls domestic law obsolete, setting a dangerous precedent. The republics weren't recognized because that was the lawful solution, but because it was more practical. Keep in mind, the commission did not say that secession was legal, but that it wasn't secession because the state was in the process of dissolution. If the state is in dissolution because of republics unlawfully not willing to comply, then you are rewarding unconstitutional behavior with international recognition. Yes, by the time the committee was established, Yugoslavia did not function in practice, but is this justification for the committee to advise other countries to recognize the states whose actions led to the unlawful dissolution?

Secession is illegal > states secede anyways > federation no longer exists > secession is not illegal anymore because the federation no longer exists > recognize new states

If you're a constituent unit in a state, all you need to do is establish de facto control over your current borders, making it difficult or impossible for the mother state to reintegrate it's territory without huge escalation, and boom, you are now an internationally recognized state.

This is a similar argument that the Trump administration is using in Ukraine. Basically "Yes, you had the right to territorial integrity, but the reality is you're not getting the territory back, move on".

Am I missing something or is international law truly obsolete? What justified the international community's recognition of new states IN SPITE OF it being illegal under Yugoslav and therefore international law?

[u/hugenheine]

I think your critique is spot on. International law is inconsistent that way, I would say. Even with regards to the Bangladesh example, there are many gross human rights violations against minorities that were not deemed severe enough to create a claim to external self-determination (eg, Biafra)

I think the best way to look at it is not to forget the IR dimension. In the end, Bangladesh’s secession had more to do with it being palatable to India, the USSR, US and China and Pakistan being comparatively weak, than to any consideration of “remedial” secession

[u/TooobHoob]

This is the outline of a thought and not a well-researched argument. However, there isn’t really any jus ad bellum for non-international armed conflicts. Your argument on internal legality is convincing I find, as well as that on self-determination. However, compared to the situation with Ukraine, starting a NIAC as a non-State actor is not an internationally prohibited act like aggression or the seizing of territory by force and its annexation. It can be punished under domestic law, but that’s not of much help if the State can’t apply it and the NSAG doesn’t recognize it.

At a glance, I think this is where the elements you critique regarding the Commission’s conclusions stem from. I’m not sure what happened with Slovenia ever rose up to the level of a NIAC, but you see my point.

Anyway this is what my 6am brain can conjure up at the moment, I may add more in a later edit or just delete the comment should I realize it was stupid. It may be an avenue for thought though.