The Arbitration Commission of the Conference on Yugoslavia (commonly known as Badinter Arbitration Committee) was an

arbitration Arbitration is a form of alternative dispute resolution (ADR) that resolves disputes outside the judiciary courts. The dispute will be decided by one or more persons (the 'arbitrators', 'arbiters' or 'arbitral tribunal'), which renders the ...

body set up by the

Council of Ministers A council is a group of people who come together to consult, deliberate, or make decisions. A council may function as a legislature, especially at a town, city or county/ shire level, but most legislative bodies at the state/provincial or ...

of the

European Economic Community The European Economic Community (EEC) was a regional organization created by the Treaty of Rome of 1957,Today the largely rewritten treaty continues in force as the ''Treaty on the functioning of the European Union'', as renamed by the Lis ...

(EEC) on 27 August 1991 to provide the conference on Yugoslavia with legal advice.

Robert Badinter Robert Badinter (; born 30 March 1928) is a French lawyer, politician and author who enacted the abolition of the death penalty in France in 1981, while serving as Minister of Justice under François Mitterrand. He has also served in high-lev ...

was appointed to President of the five-member Commission consisting of presidents of Constitutional Courts in the EEC. The Arbitration Commission has handed down fifteen

opinion An opinion is a judgment, viewpoint, or statement that is not conclusive, rather than facts, which are true statements. Definition A given opinion may deal with subjective matters in which there is no conclusive finding, or it may deal with ...

s on "major legal questions" raised by the conflict between several republics of the

Socialist Federal Republic of Yugoslavia The Socialist Federal Republic of Yugoslavia, commonly referred to as SFR Yugoslavia or simply as Yugoslavia, was a country in Central and Southeast Europe. It emerged in 1945, following World War II, and lasted until 1992, with the breakup of Yu ...

(SFRY).

Commission members

, president of the

Constitutional Council of France The Constitutional Council (french: Conseil constitutionnel; ) is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on 4 October 1958 to ensure that constitutional principles and rules ...

Roman Herzog Roman Herzog (; 5 April 1934 – 10 January 2017) was a German politician, judge and legal scholar, who served as the president of Germany from 1994 to 1999. A member of the Christian Democratic Union (CDU), he was the first president to be elec ...

, president of the Federal Constitutional Court of Germany * Aldo Corasaniti, president of the

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Francisco Tomás y Valiente Francisco Tomás y Valiente (8 December 1932 – 14 February 1996) was a Spanish jurist, historian, and writer. He was professor of history of law in the Autonomous University of Madrid. He presided Spain's Constitutional Court from 1986 to 199 ...

, president of the

Constitutional Court of Spain The Constitutional Court ( es, Tribunal Constitucional) is the supreme interpreter of the Spanish Constitution, with the power to determine the constitutionality of acts and statutes made by any public body, central, regional, or local in Spa ...

* Irène Pétry, president of the

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Opinions

Between late 1991 and the middle of 1993, the Arbitration Commission handed down 15 opinions on legal issues arising from the fragmentation of Yugoslavia.

Opinion No. 1 (Dissolution of SFRY)

On 20 November 1991

Lord Carrington Peter Alexander Rupert Carington, 6th Baron Carrington, Baron Carington of Upton, (6 June 1919 – 9July 2018), was a British Conservative Party politician and hereditary peer who served as Defence Secretary from 1970 to 1974, Foreign Secretar ...

asked whether the

secession Secession is the withdrawal of a group from a larger entity, especially a political entity, but also from any organization, union or military alliance. Some of the most famous and significant secessions have been: the former Soviet republics l ...

of some republics from SFRY preserved its existence, as Serbia and Montenegro claimed, or caused its dissolution with all the republics being equal successors to the SFRY. The commission replied on 29 November 1991, "the Socialist Federative Republic of Yugoslavia is in the process of dissolution".

Opinion No. 2 (Self-determination)

On 20 November 1991 Lord Carrington asked: "Does the

Serbian Serbian may refer to: * someone or something related to Serbia, a country in Southeastern Europe * someone or something related to the Serbs, a South Slavic people * Serbian language * Serbian names See also * * * Old Serbian (disambiguation ...

population in

Croatia , image_flag = Flag of Croatia.svg , image_coat = Coat of arms of Croatia.svg , anthem = " Lijepa naša domovino"("Our Beautiful Homeland") , image_map = , map_caption = , capi ...

and

Bosnia and Herzegovina Bosnia and Herzegovina ( sh, / , ), abbreviated BiH () or B&H, sometimes called Bosnia–Herzegovina and often known informally as Bosnia, is a country at the crossroads of south and southeast Europe, located in the Balkans. Bosnia and ...

, as one of the constituent peoples of Yugoslavia, have the right to

self-determination The right of a people to self-determination is a cardinal principle in modern international law (commonly regarded as a '' jus cogens'' rule), binding, as such, on the United Nations as authoritative interpretation of the Charter's norms. It sta ...

?" The commission concluded on 11 January 1992 "that the Serbian population in Bosnia and Herzegovina and Croatia is entitled to all the rights concerned to minorities and

ethnic group An ethnic group or an ethnicity is a grouping of people who identify with each other on the basis of shared attributes that distinguish them from other groups. Those attributes can include common sets of traditions, ancestry, language, history, ...

s.... Republics must afford the members of those minorities and ethnic groups all the

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s and fundamental

freedom Freedom is understood as either having the ability to act or change without constraint or to possess the power and resources to fulfill one's purposes unhindered. Freedom is often associated with liberty and autonomy in the sense of "giving one ...

s recognized in

international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...

, including, where appropriate, the right to choose their

nationality Nationality is a legal identification of a person in international law, establishing the person as a subject, a ''national'', of a sovereign state. It affords the state jurisdiction over the person and affords the person the protection of t ...

". The opinion also extended the principle of '' uti possidetis'' to the former Yugoslavia for the first time.

Opinion No. 3 (Borders)

On 20 November 1991 Lord Carrington asked: "Can the internal

boundaries Boundary or Boundaries may refer to: * Border, in political geography Entertainment * ''Boundaries'' (2016 film), a 2016 Canadian film * ''Boundaries'' (2018 film), a 2018 American-Canadian road trip film *Boundary (cricket), the edge of the pla ...

between

Croatia , image_flag = Flag of Croatia.svg , image_coat = Coat of arms of Croatia.svg , anthem = " Lijepa naša domovino"("Our Beautiful Homeland") , image_map = , map_caption = , capi ...

and

Serbia Serbia (, ; Serbian: , , ), officially the Republic of Serbia ( Serbian: , , ), is a landlocked country in Southeastern and Central Europe, situated at the crossroads of the Pannonian Basin and the Balkans. It shares land borders with Hu ...

and between

and Serbia be regarded as

frontier A frontier is the political and geographical area near or beyond a boundary. A frontier can also be referred to as a "front". The term came from French in the 15th century, with the meaning "borderland"—the region of a country that fronts ...

s in terms of public

?" Applying the principle of '' uti possidetis juris'', the commission concluded on 11 January 1992, "The boundaries between Croatia and Serbia, between Bosnia and Herzegovina and Serbia, and possibly other adjacent independent states may not be altered except by

agreement Agreement may refer to: Agreements between people and organizations * Gentlemen's agreement, not enforceable by law * Trade agreement, between countries * Consensus, a decision-making process * Contract, enforceable in a court of law ** Meeting ...

freely arrived at.... Except where otherwise agreed, the former boundaries become frontiers protected by international law".

Opinion No. 4 (Bosnia and Herzegovina)

The Commission was asked whether the independence of Bosnia and Herzegovina should be recognised. The Commission decided against recognition because, unlike the other republics seeking independence, Bosnia and Herzegovina had not yet held a referendum on independence.

Opinion No. 5 (Croatia)

The Commission considered the application of Croatia for the recognition of its independence. The Commission ruled that Croatia's independence should not yet be recognized because the new Croatian Constitution did not incorporate the protections for minorities required by European Community. In response, to this decision, the President of Croatia wrote to Badinter to give assurances that the deficit would be remedied, and the European Community then recognized Croatia.

Opinion No. 6 (Macedonia)

The Commission recommended for the European Community to accept the request of the Republic of Macedonia for recognition, as the Republic had given the necessary guarantees to respect human rights and international peace and security. However, the European Community was initially reluctant to accept the recommendations because of Greek opposition.Greece's Macedonian Adventure: The Controversy over FYROM’s Independence and Recognition. Evangelos Kofos, Macmillan Press Ltd (UK, USA 1999), edited by James Pettifer
/ref>

Opinion No. 7 (Slovenia)

The Commission recommended for the European Community to recognise Slovenia.

Interlocutory decision

The Commission rejected Serbian and Montenegrin objections to its competence to respond to three references that it had received from Lord Carrington, which resulted in Opinions 8, 9 and 10.

Opinion No. 8 (Completion of the process of the dissolution of the SFRY)

The Commission decided that the legal process of the dissolution of the SFRY had completed and so the SFRY no longer existed.

Opinion No. 9 (Settlement of problems of state succession)

The Commission considered state succession, resulting from the cessation of the SFRY, should be resolved. It ruled that it should be resolved by mutual agreement between the several successor states, with an equitable division of the international assets and obligations of the former SFRY. It also decided that the membership of the SFRY in international organizations could not be continued by any successor state, but each state would have to apply for membership anew.

Opinion No. 10 (Federal Republic of Yugoslavia - Serbia and Montenegro)

In this decision, the Commission ruled that the FRY (Serbia and Montenegro) could not legally be considered a continuation of the former SFRY, but it was a new state. Thus, the European Community should not automatically recognize the FRY but apply the same criteria as for the recognition of the other post-SFRY states.

Text

The text of the first ten opinions of the Badinter Commission has been published in the ''European Journal of International Law''. Opinions 1-3 are reproduced in 3 EJIL 1 (1992) pp. 182ff
available online
or for free a

. Opinions 4-10 are reproduced in 4 EJIL 1 (1993) pp. 74ff
available online
.

Criticism of Opinion No. 3

Peter Radan, an Australian legal academic of Serbian descent, has criticised the Badinter Commission's interpretation of the SFRY Constitution. 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 1974 Constitution of the Yugoslavia. 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. Article 5 stipulates: (1) The territory of the SFRY is indivisible 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 referring to article 5, his criticism is that the Badinter Commission was guilty of selective quoting. Radan's reason for this opinion is that 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. Radan argues 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. According to Radan, 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, he argues that article 5 provides no support for the application of the Badinter Borders Principle to the fragmentation of the SFRY. Based upon the above analysis of the reasoning of the Badinter Commission in Opinion No 3 Radan concludes 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" and that in redrawing the new borders between independent states "it may even be necessary to facilitate orderly and voluntary transfers of parts of the population."

References

External links

Testimony of Vladislav Jovanovic
at the Milosevic

ICTY The International Criminal Tribunal for the former Yugoslavia (ICTY) was a body of the United Nations that was established to prosecute the war crimes that had been committed during the Yugoslav Wars and to try their perpetrators. The tribunal ...

trial, 14 February 2005 {{Authority control Political history of Serbia Political history of Croatia Political history of Bosnia and Herzegovina Political history of North Macedonia Political history of Slovenia Political history of Montenegro Socialist Federal Republic of Yugoslavia Foreign relations of the European Union International arbitration courts and tribunals 1991 in Yugoslavia