By Eric Vandenbroeck and co-workers

1991 Belgrade, Montenegro, and Kosovo

What was interesting by the recognition of Slovenia, Croatia and Bosnia was the role of the ad hoc committee made of a group of prominent international lawyers that were given a task of determining the current state of Yugoslavia and determine whether individual states should be granted recognition, which leads us to our central questions in the case of this 6 part investigation;  whether recognition is politics or law, and if is it arbitrary decision making based on economic interests that guides the policy of recognition.

Starting with the early Spring of 1991 a troika of EC foreign ministers 1 was sent to Belgrade Yugoslavia with clearly defined goals. Those included negotiating the withdrawal of Slovenia's declaration of independence and achieving a cease-fire between the warring factions.  In May 1991 the Federal Council refused to elect Stipe Mesic who under the Constitutional arrangement of the federation was supposed to assume the Federal Presidency. Serbia and Montenegro and the representatives of the two autonomous republics (Vojvodina and Kosovo) blocked the vote despite Croatia's threat to secede if Mesic was not elected.2

The main goal of the troika as pointed out by British Prime Minister John Major was to preserve Yugoslav unity. The last United States Ambassador to Yugoslavia, Warren Zimmerman, also confirmed this view as the official stance of the United States' foreign policy.3 It was confirmed by Secretary of State James Baker, on June 21, while visiting Belgrade that the US strongly endorsed a declaration adopted two days earlier at the Berlin meeting of the CSCB which expressed support for "democratic developments and the territorial integrity of Yugoslavia".4 The EC pointed out that regardless of the aim it would only accept resolution of the crisis by peaceful means by any of the parties to the crisis.5

A European Parliamentary Resolution of 15th March 1991 called for the creation of a constitution which would "by respecting the rights of all the peoples in Yugoslavia enable the State of Yugoslavia to continue." It said that the constituent republics and autonomous provinces of Yugoslavia must have the right freely to determine their own political future in a peaceful and democratic manner and on the basis of recognized international and internal borders. The Resolution condemned the violent conduct of the army in maintaining public order and the continuing violations of the human rights of the ethnic Albanian population in Kosovo. By March 1991 the conditions in former Yugoslavia were filled with suspicion and mistrust. The Constitutional negotiations between republican leaders did not resolve the political deadlock, while the EC remained on the sidelines without pursing an active role in those negotiations.

The European Parliament's resolution itself created much confusion about international legal rights. It addressed the rights of the "people" of Yugoslavia which is clearly the language of self-determination and the language used in the 1974 Constitution. Those terms were used as the legal basis for the independence movements within Slovenia and Croatia. Assuming that the relevant peoples possessed the right to self-determination, the resolution provided no justification for its suggestion that Yugoslavia should continue as a unified State and on the basis of recognized internal and international borders. If the territorial integrity of Yugoslavia was the aim, one must question the condemnation of the JNA and their role in preserving such unity, especially since the JNA has not committed any harm yet. The confused messages within this resolution characterized the EC's approach to the conflict and served only to convince each Yugoslav republic that they received the implicit support of the international community for their juxtaposed political aims. At a time when the future of Yugoslavia was on a verge of a disaster, such influences may be argued to have played an active role in the dissolution of the SFRY.6

The EC troika's first perceived achievement was the conclusion of the Brioni Accords on July 8, 1991.7 This was the first real instance of institutional cooperation, since the EC troika had concluded the agreement alongside a CSCE 'good offices' delegation. Some European leaders were eager to use this opportunity for the EC to assert itself as an international force. This was evident in the overzealous, dramatic remark of Luxembourg's Foreign Minister, Jacques Poos: "This is the hour of Europe"8 The Accord was successful in securing a cease-fire in Slovenia and a three month moratorium on the declarations of independence from Slovenia and Croatia, pending negotiations on their future relations. Despite the claims that this represented a beginning to the resolution of the conflict, the reality was that this effectively allowed Slovenia to consolidate its de facto independence from Yugoslavia while allowing the JNA to regroup and concentrate its attentions on Serb-populated areas within Croatia and Bosnia. When violence escalated in Croatia shortly after the Brioni Accord, it became clear that the EC was far from resolving the conflict, or indeed understanding its aims.9 In the Brioni Accord the EC accepted that "a new situation has arisen" in the SFRY.10 This new situation required a more forceful EC involvement in the negotiations process and accordingly it was announced that the troika would make preparations for EC participation. The statement noted that such negotiations should be "based on the principles enshrined in the CSCE's Helsinki Final Act and the Charter of Paris for A New Europe, in particular respect for human rights, including the rights of minorities, and the rights of peoples to self-determination in conformity with the Charter of the United Nations and with the relevant norms ofintemationallaw, including those relating to the territorial integrity of States".11 Some of the achievements from the Brioni were restricted by the increasing fighting in Croatia. An EC statement of 28th August 1991 condemned such violence and specifically directed its condemnation towards Serbian irregulars and "elements ofthe Yugoslav National Army (JNA) lending their active support to the Serbian side".12 The statement called on the Yugoslav Federal Presidency to "put an immediate end to the illegal use of the forces under its command".13

Brioni was not an EC triumph. The agreement held because the JNA had lost interest in Slovenia, and Milosevic had no interest in fighting for Slovenia.14 Boris lovic, who was Serbia's representative on the Federal Presidency and a close associate of Milosevic, remarked: "We couldn't care less if Slovenia left.“15 While the initial euphoria about the Brioni agreement was replaced by unwillingness of the parties to engage in meaningful negotiations, the EC announced its decision to suspend its financial protocols with Yugoslavia and to impose an arms embargo against the SFRY.16 These measures were not effective since economic sanctions rarely affect the leaders who are negotiating but rather only the people of the country, and the arms embargo left the JNA with a disproportionate stockpile of weapons to use against the other republics. The EC was left with only diplomatic and economic tools at its disposal. The Brioni Agreement recognized the Slovene victory and made Slovenia and Croatia the subject, de facto, of international law while opening the way for the eventual recognition of their statehood.17 In the period until the adoption of the Dayton Peace Accords in 1995, two major conferences were held: the European Community sponsored Conference on Yugoslavia (from September 1991-August 1992) and the International Conference on the Former Yugoslavia trom August 1992 onwards.18 Lord Peter Carrington 15, the EC special envoy to Yugoslavia, was appointed the Chairman of the first European Community conference to bring peace to former Yugoslavia. Its mandate was to "ensure the peaceful accommodation of the conflicting aspirations of the Yugoslav peoples on the basis of the following principles: no unilateral change of borders by force, protection of the rights of all in Yugoslavia and full account to be taken of all legitimate concerns and aspirations.“19 An EC statement of 19th September 1991 acknowledged that the new situation in Yugoslavia called for "new relationships and structures" and that although the ECCY was intended to facilitate negotiations on this basis, the EC was willing to "accept any outcome that is the result of negotiations conducted in good faith".20

Lord Carrington's role in the ECCY's task was complicated by two factors. First, Yugoslavia as a sovereign state appeared beyond repair. Second, as he was aware, recognition of either Croatia or Slovenia would be disastrous for Bosnia in the absence of an overall peace agreement. This was an astute observation on his part. The reality went further though as the recognition of both Croatia and Slovenia brought disaster on the ground and a race between Croatia and Serbia to gain territory in Bosnia. Lord Carrington's Draft Convention followed the principles of the Izetbegovic Gligorov Plan. This plan was presented by the Bosnian and Macedonian presidents on June 6, 1991. It presented a compromised model for Yugoslavia in a last attempt to prevent disintegration. They proposed an "asymmetrical federation" as a model for the country's constitution. This formula envisaged Serbia and Montenegro as the heart of the Yugoslav federation; Bosnia and Macedonia as semi-detached, but constituent republics; and Croatia and Slovenia exercising as much sovereignty and autonomy inside the conferederation as it suited them. However it was already too late for any attempt to keep Yugoslavia together as Slovenia was well on its way to independence and Tudjman was determined to follow their action promising that if Slovenia separated Croatia would not stay in Yugoslavia a day longer.21 Carrington's plan aimed at providing greater autonomy to sovereign republics who would nevertheless continue to cooperate at a federal level on issues such as common currency, defense and foreign policy.22 During the second session of the Conference in The Hague on October 18, 1991, Lord Carrington submitted a Draft Convention suggesting that sovereignty and independence should be awarded to the federal units. He further indicated that they should be internationally recognized as States with the possibility for free association of sovereign states and establishment of the mechanism for protection of human rights as well as the rights of national and ethnic groups. A special right was to be provided for territories in which the majority population belonged to a national or ethnic group and special reference was made to the Serbs in Croatia.23 The proposal was decisively rejected by the Serbian President Slobodan Milosevic, who stated that it "suspends the existing constitutional order and abolishes Yugoslavia as a state, which has continuously existed for 70 years.“24 Only Serbia formally opposed the adaptation of the Plan and thereby effectively ended the possibility of Yugoslavia surviving as a normal sovereign state. This strengthened the opinions of States such as Germany who believed that recognition was the key to solving the conflict.25 Germany believed that non-recognition would escalate the conflict in the region while recognition would be a preventive measure and would bring resolution to the crisis.

On August 27 1991, the EC abandoned its commitment to Yugoslavia and demanded that Serbia permit EC observers in Croatia, requested a third emergency meeting of the CSCE's Committee of Senior Officials, set up an arbitration commission of international jurists headed by French constitutional lawyer Robert Badinter to arbitrate issues of succession among the republics and proposed a peace conference. The origin of the arbitration is controversial. According to Susan Woodward, the arbitration commission was originally proposed by Slovenia which wanted an outside body to help it negotiate economic disputes over the distribution of assets and debts of the former federation so that it did not have to deal directly with any Yugoslav body.27 On the other hand, Robert Badinter stated that the arbitration came as the initiative of the French president and himself.28

As an agreement on the continuation of the Conference was reached on 9 December, on 29 November 1991, replying to the letter of Lord Carrington, the Arbitration Commission of the Conference on Yugoslavia (Badinter Commission) issued its first Opinion in which it expressed the view that, inter alia, the SFRY was in the process of dissolution and it was up to the republics wishing to do so to act jointly to create new associations.29 This statement officially confirmed the ending of the existence of Yugoslavia. According to Susan Woodward in Balkan Tragedy, the events which took place pertaining to the dissolution of the Soviet Union are closely tied to the situation and decision-making made with respect to Yugoslavia. With the new leadership of Boris Yeltsin, Russia took time to redefine national interests before it could emerge as a diplomatic player. Austria joined Germany in their plea for recognition and argued that "the collapse of communism in the USSR modifies the situation in Yugoslavia and there is no more reason not to recognize the independence of Slovenia and Croatia".30 In the meantime, there was a growing pressure to recognize the republics. German Foreign Minister Genscher in a letter to the UN Secretary General dated December 13, 1991 explained: "As ascertained by the EC and the monitors, the Serbian leadership together with the Yugoslav National Anny bears the main responsibility for the non-compliance in Croatia with the cease-fire and for the fact that the conference on Yugoslavia has been stalemated for several weeks. To refuse recognition to those republics which desire their independence must lead to a further escalation of the use of force by the national Anny which would construe it as a validation of its policy of conquest. [P]ursuant to the Final Act of Helsinki and the Charter of Paris the borders in Europe are inviolable and must not be changed by force. Therefore, the EC had demanded respect for the internal and external boundaries of Yugoslavia.“31

Genscher pushed for early July 1991 recognition of Slovenia and Croatia to be used as diplomatic tool to threaten Serbia to desist what he referred to its "aggression" and as a means to circumvent the need for consent from Yugoslav authorities for an EC force in Croatia.32 Susan Woodward correctly points out that the issue of recognition became extremely important on the domestic front as it was perceived as a test of the new German role in Europe and proof of its new form of statecraft.33 The more opposition they faced from other European countries, the more they pushed for their views and early recognition. Accordingly, the EC produced a set of guidelines to coordinate EC recognition of the new States resulting from the fragmentation of these two countries. The first, entitled Guidelines for the Recognition of New States in Eastern Europe and the Soviet Union detailed a number of political demands, which had to be satisfied before the EC recognition would be granted. The importance of self-determination as the legal basis for such independence is implicit in the first paragraph of this Declaration which states that recognition is based on the EC's "attachment to the principles of the Helsinki Final Act and the Charter of Paris, in particular the principle of self-detennination".34 It further stated that recognition and the establishment of diplomatic relations with the EC, would be conditional upon "the normal standards of international practice and the political realities in each case" and would be limited to "new States which have constituted themselves on a democratic basis.. .accepted the appropriate international obligations and...committed themselves in good faith to a peaceful process and negotiations". The principles embedded in the UN Charter, the Helsinki Final Act and the Charter of Paris must be respected, "especially with regard to the rule of law, democracy and human rights and respect for the rights of ethnic and national groups and minorities". The inviolability of "all frontiers" must be acknowledged and change to those frontiers could only be implemented by peaceful means and common agreement. Moreover, all new states were required to accept commitments on nuclear non-proliferation and disarmament and to accept regional and security obligations. The Declaration also emphasized the EC's refusal to recognize entities which were the result of aggression and noted that account would be taken of the effect of recognition on neighboring states.35

A separate Declaration on Yugoslavia made further demands of the Yugoslav republics seeking recognition, which was to be granted to the appropriate republics on 18 th of January 1992. Slovenia and Croatia were officially recognized by the EC on 15th January 1992 but Germany had said the Guidelines were announced that it had already decided to recognize Slovenia and Croatia, even before the Commission had considered their applications.36 Germany said it intended to delay "implementation" of this decision until the 15th January, as stipulated by the Guidelines and declaration, but it made it clear that this decision to recognize had already been made in principle. Chancellor Kohl of Germany addressed the Bundestag on November 27,1991 and indicated that Germany would implement recognition of Slovenia before Christmas even if the other states of the EC did not concur. Kohl explained: "There is no obligation for unanimity".37 This fatally undermined the EC's initial objectives of maintaining a united Yugoslavia, but with the political imperative of consensus within the EC appearing to outweigh the consequences of such action, the other Member States acquiesced to Germany's demands.38

The Declaration expressed support for the ECCY and peace-efforts of the UN Secretary-General. Second, it required acceptance of the principles in the Guidelines and the Carrington Draft Convention, especially those in Chapter IT pertaining to the human rights of ethnic and national groups and minorities. Third, it required the republics to adopt constitutional and political guarantees".. .ensuring that it has no territorial claims towards a neighboring community State and that it will conduct no hostile propaganda activities versus a neighboring Community State, including the use of a denomination which implies territorial claims".39

Aspiring states were advised to submit applications for recognition to the Arbitration Commission before 23rd December 1991, a mere week after the adoption of the Declarations. The task of the Commission was to consider the applications and provide advice on whether the republics had fulfilled the requirement of the Guidelines and Declaration. The Declaration on Yugoslavia as well as the Guidelines issued on 16 December 1991 by EC foreign ministers were significantly to influence international relations on the issue of recognition of the newly emerging states of Eastern Europe.

Lord Carrington resigned his position as ECCY Chainnan once recognition of Croatia and Slovenia was announced on 15th January 1992,40 believing recognition to be premature and likely to escalate the conflict. The offer of recognition to Slovenia and Croatia clearly forced Bosnia and Macedonia to seek independence or risk absorption into Yugoslavia, and plebiscites, which were held in Bosnia resulted in an outbreak of fighting fiercer than that in Slovenia and Croatia combined.

An EC-USA joint statement of 10th March 1992 declared the intention of these nations to coordinate their approaches towards recognition of the republics seeking independence. However, the timing of this declaration following recognition of Slovenia and Croatia and the positive indications given to Bosnia-Herzegovina and Macedonia made it clear that recognition of the other states was only a matter of time.41

When conflict erupted in Croatia, the EC declared that it had to do something in order to prevent the bloodshed.42 Its immediate response was the creation of ECCY. Moreover, it made reference to an arbitration procedure to operate within the Conference, which later became known as the Badinter Commission. The EC's motives for creating an arbitration procedure were attested to the unusual situation it faced in Yugoslavia.43 In the absence of establislled mechanisms for dealing with intra-State conflicts, the EC opted to create an ad hoc organ. The scope of Commission's mandate was nowhere explicitly outlined. Even in the opinion of Allan pellet 44, who was in charge of the legal aspects of the work of the Commission, "the mandate given the Committee was somewhat vague.“45 On August 27, EC Declaration on Yugoslavia establishing the Arbitration Commission stated: "The Community and its member States cannot stand idly by as the bloodshed in Croatia increases day by day. An agreement on the monitoring of the cease-fire and its maintenance should allow the Community and its member States to convene a peace conference and establish an arbitration procedure. This peace conference will bring together:

- on the part of Yugoslavia, the Federal presidency,

- the President of the Council, representatives of the member States and the Commission.

The relevant authorities will submit their differences to an Arbitration Commission of five members chosen from the Presidents of Constitutional Courts existing in the Community countries.The composition of the Arbitration Commission will be:

- two members appointed unanimously by the Federal Presidency;

- three members appointed by the Community and its member States.In the absence of agreement of the members to be appointed by the Federal presidency [of Yugoslavia], they will be designated by the three member appointed by the Community.” 46

The ECCY was made into a primary political vehicle through which the disputing parties would meet while the Arbitration Commission was the primary legal organ within this framework. The phrasing of the Declaration was rather broad and it indicated no specific instructions as to the procedure. The Declaration did not define procedures for Commission deliberations nor was there a mechanism for compliance. Pellet noted the mandate’s extreme terseness and the fact that they provided no indication of the applicable law or other vitally important questions.47 Another author concluded that the initial terms of reference would not satisfy the minimum requirements of an arbitration astarbeit under the International Law Commission’s Model Rules on Arbitral Procedure.48 These rules required a astarbeit to identify the disputing parties, consent to the arbitration procedure, the subject matter of the dispute and specific points of disagreement, the composition of the tribunal, the applicable law, the procedural organization of proceedings, the decision-making process, time limits for decision making and the language of the proceedings. The ECP Declaration dealt only with the time limits for decision-making and the composition. The Declaration stated that the Commission would consist of five members chosen from the Presidents of the constitutional courts of the EC Member States.49 The EC appointed as arbitrators Robert Badinter, President of the French Conseil Constitutionnel, Roman Hertzog, president of the German Karlsruhe Constitutional Court and Aido Corasaniti, president of the Italian Constitutional Court.50 The Commission first met in Paris on 11^th September 1991. It was agreed that Robert Badinter would act as President.51

On November 20^th, 1991, the Arbitration Committee received a letter from Lord Carrington. The letter stated the following: “We find ourselves with a major legal question. Serbia considers that those Republics, which have declared or would declare themselves independent or sovereign, have seceded or would secede from the SFRY which would otherwise continue to exist. Other Republics on the contrary consider that there is no question of secession, but the question is one of disintegration or breaking up of the SFRY as the result of the concurring will of a number of Republics. They consider that the six Republics are to be considered equal successors to the SFRY, without any of them or group of them being able to claim to be the continuation thereof. I should like the Arbitration Committee to consider the matter in order to formulate any opinion or recommendation which it might deem useful.“52

The Commission delivered Opinion I on 29^th November 1991, merely nine days after receiving Lord Carrington’s letter. Opinions 2 and 3 were not returned until 11 th January 1992. The question as to why the Commission decided to stagger the return of its deliberations was addressed by Pellet. He rightly concludes that the decision to answer Lord Carrington’s first question before those posed by Serbia cannot be attributed to deference to the ECCY Chairman’s position. Pellet asserted that the primary reason was the need to determine whether constitutional or international law was applicable but it is submitted that political, rather than legal, logic was the chief factor behind this decision. The international community wanted to establish that Yugoslavia was in the process of dissolution before any other decisions could be made. After this fact was established, it opened many doors for the involvement of the international community as well as establishing the right for the secessionist states to be recognized. The Commission’s answer to the first question, whether events in Yugoslavia indicated a dismemberment of the SFRY or secession of some of its territories, would heavily influence negotiations, which followed this response. If the Commission endorsed Serbia’s contention that it was a question of secession, this might have convinced Belgrade that the international community was prepared to accept the continuation of Yugoslavia in the form of Milosevic’s Greater Serbia. Conversely, if the Commission had decided that Yugoslavia’ dissolution was a given reality, this may have sparked conflict in areas which had up until that point avoided it, such as Bosnia Herzegovina and Macedonia. Lord Carrington had already suggested that accepting the independence of individual republics in the absence of overall arrangement governing issues of succession and future relations would light the fuse on a wider Balkan conflict.53

Assessing Yugoslavia’s factual situation in light of these principles, the Commission found that although Yugoslavia had until this point retained its legal personality, a number of constituent republics had “expressed their desire for independence”. Reference was made to the referenda in Slovenia and Croatia 54, which indicated popular support for independence, and Macedonia’s referendum “in favor of an independent Macedonia within an association of Yugoslav States”.55 Bosnia had adopted a Parliamentary resolution declaring the republic sovereign, although the Commission noted that this had been contested by Bosnian – Serb parliamentary representatives.

The Commission’s crucial factual finding was that ‘’that composition and workings of the essential organs of the Federation, be they the Federal Presidency, the federal Council, the Council of the Republics and the Provinces, the Federal Executive Council and the constitutional court or the Federal Anny, no longer meet the criteria of participation and representativeness inherent in a federal state”.56 This sparked conflict which had caused thousands of deaths and shown the Federal and Republican authorities to be “powerless to enforce respect for succeeding cease-fire agreements concluded under the auspices of the EC or the UN.” This in turn led the Commission to conclude that Yugoslavia was “in the process of dissolution“57 and that, should issues of State succession arise, it would be incumbent on the republics to settle all related problems on the basis of respect for international law, particularly human rights and the rights of peoples and minorities which it described as “… peremptory norms of general international law”. The Commission defined State succession as ‘’the replacement of one State by another in the responsibility for the international relations of territory” and noted that this occurred “wherever there is a change in territory of the State”.58 The Commission noted that this was a question of international law and that the Vienna conventions of 1978 and 1983, dealing with the succession process, had drawn inspiration from customary international legal principles.59

Even though the word dissolution in this case may be automatically interpreted as an incontrovertible and irreversible fact, the Commission indicated that it remained possible to maintain Yugoslavia’s territorial unity if the constituent republics worked together to “form a new association endowed with the democratic institutions of their choice”.60 Opinion 1 did not endorse Serbia’s assessment of the situation. It refuted suggestions that Yugoslavia was no longer a viable unified State and allowed for the possibility of negotiations between the parties to re-draft Yugoslavia’s constitution and create new democratic institutions which satisfy the demands of all parties. The factual situation failed to indicate with any legal certainty whether Yugoslavia was a lost cause and Opinion 1 placed this decision in the hands of the republics themselves. The seriousness of the situation was evident in the Commission’s findings that a process of dissolution had begun which required co-operation of all Yugoslav parties to prevent it becoming de facto dismemberment. These findings explain the reasons behind the decisions of the Commission to delay examining questions of internal boundaries and self-determination, both of which would depend on whether the dissolution process continued until Yugoslavia no longer existed or whether negotiations would somehow save the SFRY. The right of the Serbs in Croatia and Bosnia could not be answered until it was clear whether they remained Yugoslav citizens or citizens of independent successor States and to answer this preemptively could have damaged political negotiations.

The Extraordinary EPC Ministerial meetings held at Brussels on December 16,1991 established the “Guidelines on the Recognition of New states in Eastern Europe and the Soviet Union.” The Guidelines and the Declaration established a collective mechanism for the recognition of new states.61 First, a set of threshold requirements was enumerated in the separate Declaration. On or before December 23, 1991, any republic of Yugoslavia wishing to be recognized by the EC and its member States would formally announce its wish to be recognized. The putative state also had to affirm the following: 1. Acceptance of provisions outlined in a Draft Convention on Yugoslavia,61 including provisions on human rights and on the rights of national and ethnic groups; 2. Continued support for a) the peace efforts of the Secretary General and the Security Council of the United Nations and b) the continuation of the Conference on Yugoslavia; and 3. Acceptance of the commitments contained in the Guidelines on the Recognition of New States.

Whether the criteria were satisfied was to be determined by the Conference. In the second part of the procedure, the Commission evaluated the application in view of the Guidelines. The December 16 Declaration provided that any republic submitting its application by the December 23 deadline would receive a response from the arbitrators before January 15, 1992. The arbitrators would study the application and the conditions obtaining in the applicant republic to determine conformity with the Guidelines. The Guidelines stated: “The Community and its member States confirm their attachment to the principles of the Helsinki Final Act and the Charter of Paris, in particular the principle of self-determination. They affirm their readiness to recognize, subject to the normal standards of international practice and the political realities in each case, those new states which, following the historic changes in the region, have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations.“62

They adopt a common position on the process of recognition of these new states, which required:”-respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights;-guarantee for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to the framework of the CSCE;-respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreements;-acceptance of all relevant commitments with regard to disarmament and nuclear nonproliferation as well as to security and regional stability; and -commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes.“63

The Community and its member States will not recognize entities, which are the result of aggression. They would take account of the effects of recognition on neighboring States. The commitment to these principles opens the way to recognition by the Community and its member States and to the establishment of diplomatic relations. It could be laid down in agreements.64 One additional criterion for recognition was included in the December 16 Declaration: “The Community and its member States also require a Yugoslav republic to commit itself. Prior to recognition, to adopt constitutional and political guarantees ensuring that it has no territorial claims towards a neighboring Community State and that it will conduct no hostile propaganda activities versus a neighboring community State, including the use of a denomination which implies territorial claims.”65

This last additional criterion was probably the most precise in the whole document. The third and final step in the procedure outlined on December 16 was “implementation”. If the Arbitration Commission decided that an applicant republic satisfied all the relevant criteria, then on the date prescribed in the Declaration which in this case of January 15, 1992, the Community and each member States agreed to recognize that republic.66 Opinions 2 and 3 were delivered on 11 th January 1992, following adoption of the Guidelines on Recognition and Declaration on Yugoslavia and applications for recognition received from most Yugoslav republics. It was clear by then that the suggested negotiations were not occurring and that Yugoslavia did not have enough support in order to continue to exist as one country.67

In its Opinion No.2, the Arbitration Commission addressed the following question sent by Lord Carrington, posed by the Republic of Serbia: “Does the Serbian population in Croatia and Bosnia and Herzegovina, as one of the constituent peoples of Yugoslavia, have the rights to self determination?” The Arbitration Commission however never provided a definition of the “right” of self determination nor the “self’ with respect to peoples of Yugoslavia. That might have been a task too grand for the capacity of the commission. It did point out that the intemationallaw as it currently stood did not spell out the implications of the right to self-determination.“68 The Commission pointed out that the potential implications of the right to self-determination “must not involve changes to existing frontiers at the time of independence (uti possidetis juris), except where the States concerned agree otherwise”. 69 The Commission used the language of minority rights to explain the rights of Serbs in Bosnia and Croatia and asserted that, within States encompassing one or more ethnic, religious or linguistic communities, those groups had the right to “recognition of their identity under international law”. This built on Opinion 1, wherein the Commission described the rights of minorities as jus cogens.70 Serbs in Croatia and Bosnia “must… be afforded every right accorded to minorities under international conventions as well as national and international guarantees consistent with the principles of international law and the provisions of Chapter II of the Carrington Draft Convention…which has been accepted by these Republics”. Linking the concept of minority rights with self-determination, the Commission noted that the Human Rights Conventions of 1966.71 identify self determination as a concept, which safeguards human rights. This led that those Serbs could be recognized as having the rights to choose their nationality, presumably Serb, while remaining a citizen of the republic in which they are currently residing i.e. a right to dual nationality.72

Opinion 3, dealt with the frontiers between Croatia and Serbia and Bosnia and Herzegovina and Serbia, was clearly decided after Opinion 1, since it referred to the applications for recognition by inter alia Croatia and Bosnia. Which had not occurred when Opinion 1 was delivered. It reiterated the Commission’s stance that the question of the status of internal boundaries must be “founded on the principles and rules of public international law”. From the statements it is not clear whether the Commission considered international law applicable per se in intra-state conflicts or whether there must be an independence movement and civil conflict before the dispute resolution procedure would be founded on international legal principles.

The Commission stated that, “once the process (of disintegration) in the SFRY leads to the creation of one or more independent States, the issue of frontiers, and particularly those of Bosnia and Croatia must be resolved in accordance with the following principles: “First – All external frontiers must.be respected in line with the principles stated in the UN Charter, in the Declaration on Principle of International law concerning Friendly Relations and Co-operation among states in accordance with the Charter of the United Nations… and in the Helsinki Final Agreement, a principle which also underlies Article 11 of the Vienna Convention of 23 August 1978 on the Succession of States in Respect of Treaties. Second – The boundaries between Croatia and Serbia, between Bosnia and Serbia, and possibly between other adjacent independent States, may not be altered except by agreement freely arrived at. Third – Except where otherwise agreed, the former boundaries become protected by international law ,Fourth – According to well established principles of international law, the alteration of existing frontiers or boundaries by force is not capable of producing any legal effect.“73

Yugoslav federal authorities had argued that Article 5 of Yugoslavia’s 1974 constitution rendered illegal any attempt to disrupt Yugoslavia’s territorial unity. Article 5 states, inter alia, that “The territory of the SFRY is a single unified whole… The territory of a Republic may not be altered without the consent of that Republic… The frontiers of the SFRY may not be altered without the consent of all Republics and Autonomous Provinces.. .Boundaries between the Republics may only altered on the basis of mutual agreement”. While the federal authorities emphasized the importance of the consent of all republics before Yugoslavia’s external borders could be altered, the Commission’s focus was on those passages stating that the borders of republics or autonomous regions could not be altered without their consent and that any attempt to change those borders forcibly would be legally invalid.74 The Commission concluded with a “well established principle of international law” that existing borders could not be altered by force, without limiting this statement to inter-state borders.75

The Declaration clearly states that implementation of the Ee’s recognition of applicants would occur on January 15, 1992 and that all applications must be made by December 23, 1991. Given that the period in which the Commission’s advice would be sought is a mere 23 days, this is clearly short of the two-months provided for in the Commission’s original mandate. Even assuming applications were received by the European Council on the same day the Guidelines were published, this gave the Commission only a further week to receive the applications from Lord Carrington, solicit the necessary information and advise the Council in time for them to have formulated a policy on recognition for the January 15. It is apparent that the Commission’s influence in the recognition decisions was intended to be nominal and that the EC had already decided on the action it intended to take in respect of the various applicants. Germany had already undermined the Guidelines attempts to coordinate recognition by announcing, on December 23, 1991 that it had decided to recognize Croatia and Slovenia but would wait until the January 15, 1992 to implement this decision. This obviously represented a serious disregard of the Commission’s advice and authority on these questions.76

The Commission referred to Slovenia’s plebiscite of December 23, 1990 which produced an overwhelming vote in favor of independence 77 and the Slovenian constitution before concluding that the republic satisfied the criteria for recognition. The Commission found that Republic of Slovenia satisfied all the outlined criteria but did not directly recommend recognition. On January 15, 1991 the European Council announced its decision to recognize Slovenia in accordance with Opinion 7. It also appeared to follow the Commission’s advice in announcing that Bosnia’s application left “important matters to be addressed” and that the Council unanimously supported the Commission’s suggestions of a referendum.

With respect to Bosnia and Herzegovina, the Commission considered the application for recognition to be insufficient to the extent that it had not expressed the will of the entirety of the republic’s population. The Commission was aware that on November 10, 1991 the Serbian people of Bosnia and Herzegovina passed a resolution calling for the formation of a “Serbian Republic of Bosnia and Herzegovina” in a federal Yugoslav State if the Muslims and Croat communities of Bosnia and Herzegovina decided to “change their attitude towards Yugoslavia”. On January 9, 1992 the Serbs of Bosnia proclaimed the independence of a “Serbian Republic of Bosnia and Herzegovina.“78 The Arbitration Commission therefore wisely decided that the will of the peoples of Bosnia and Herzegovina to constitute the SRBH as a sovereign and independent State cannot be held to have been fully established. It suggested that Bosnia remedy this situation “possibly by means of a referendum of all the citizens of the SRBH without distinction, carried out under international supervision.“79 When the Bosnian authorities organized a referendum 80 under CSCE supervision on May 1, 1992 it was boycotted by Bosnian-Serbs but almost all Bosnian-Muslims and Bosnian-Croats voted in favor of independence, which ensured an overall majority of 64% of Bosnia’s entire population.81 Susan Woodward claims that the date ofthe referendum was on February 28 March 1.671 Bosnia was recognized by the EC on April 7, 1992 (72) igniting disastrous  conflict which started one day after its recognition. Mr. Robert Badinter, expressed grave regret regarding the decision of the international community to recognize Bosnia, contrary to the recommendation of the Commission. He felt that recognition was premature and that it aggravated the situation in the country. He stated:”Intemationallaw lost in Yugoslavia“81 Mr. Badinter believed that the recognition was premature and that the EC should have waited until the situation in the country stabilized. In his opinion, it was wrong to recognize Bosnia as not all parties agreed to live in that country. He is of the opinion today that future of Bosnia is in the air and that it may still dissolve into three parts: Herzeg-Bosna, Republika Srpska and a Muslim State.

The Commission found that certain provisions of the Carrington Convention,”notably those contained in Chapter II, Article 2 (c), under the heading “Special Status“82 had not been fully incorporated in the Croatian Constitution and consequently concluding that Croatia had not fulfilled the criteria for recognition. Although, in a “Comment” given by the Commission on July 4, 1990 Croatia’s amended Constitution was said to satisfy “the requirements of general international law regarding the protection of minorities”, the Commission felt the Carrington Convention provisions on autonomy had not been fully incorporated. Regardless, the Commission’s view in Opinion 5 was that subject to this reservation, the “Republic of Croatia meets the conditions for recognition by the Member States of the EC as outlined in the joint statement on Yugoslavia and the Guidelines.“83

Even before Opinions 2-7 was published on January II, 1992, the Yugoslav Federal Presidency had published its own views on the question posed in Lord Carrington’s letter. It was argued that the right to self-determination, including the right to seek independence or secession, could not be exercised by sub-State regions of existing States unless those regions were populated by only one ‘people’, a nation. To hold otherwise would define the ‘right’ as “self-determination of citizens, instead of peoples”.84 The Presidency concluded that Yugoslavia’s constituent nations enjoyed the right of self-determination, up to and including secession, which was guaranteed by Yugoslavia’s Constitution of 1946, 1963, and 1974, but that this could not be implemented unilaterally and required “constitutional and legal” regulation. This means that none of Yugoslavia’s republics could achieve independence without the consent of all republics and, having attempted to do so, Serbs within those secessionist republics could seek to leave them to remain within the FRY. A later position, published on December 30, 1991, addressed the issue dealt with the Opinion 3 and argued that, in seeking EC recognition, Croatia and Bosnia had breached Yugoslavia’s 1974 Constitution. The possibility for territorial fragmentation was evident when the Presidency threatened that “if the Republic of Croatia should become an independent State, without a prior adjustment of the administrative border between this republic and Montenegro to make Prevlaka an integral part of Montenegro, the sovereignty of Yugoslavia, and of Montenegro, over a part of its territory, the Boka Kotoska Bay, would be threatened.“85

This position reveals further elements of the Commission’s practice since it refers to questions posed to the republican leaders by Mr. Badinter, asking whether they considered republican boundaries to constitute international legal borders. The Presidency’s position was that, from medieval times, these internal borders had been very vaguely defined and were currently based on formulations resulting from wartime conditions under which “it was impossible to apply with any consistency ethnic, economic, political or other principles relevant to the charting of internal borders”.86

When the Presidency’s position was not reflected in Opinion 3 and when the EC recognized Croatia and Slovenia despite warning that this would constitute “interference in the internal affairs of the sovereign State [a] violation of international law… and a dangerous precedent in international relations.. . “, Serbia and Montenegro issued a jurisdictional challenge against the Commission. 87 Regardless, in its opinion 8 issued on 4 July 1992, the Arbitration Commission permanently sealed the fate of Yugoslavia by confirming that the process of dissolution of the SFRY referred to in Opinion No.1 of 29 November 1991 was complete and that the SFRY no longer existed.88

To the extent that arbitration is traditionally dependent on the consent of the disputing parties, this may have hindered the Commission’s consideration of these issues. Even though advisory opinions such as those from the Badinter Commission are non binding, even when originating ast such prominent judicial authorities as the International Court of Justice, such opinions are not without legal effects and may be used as a way of encouraging development of international law. Even though such decisions cannot be enforced, failure to abide by them or implement them can have negative political as well as economic consequences and may result in the international community or individual countries imposing sanctions on the country that is in violation. Many have argued that the work of the Badinter Commission has initiated a new era of collective recognition and collective decision-making in Europe. This practice may develop into customary international law and may become a part of the standard practice for the recognition of new states. The Decision to Recognize: Why was it so tempting?

Many have argued that the dissolution of Yugoslavia started in 1974 with the passing of new constitution and that it accelerated after Tito’ s death in 1980. It is perplexing why the dissolution of Yugoslavia and recognition of new republics was conducted in a span of a few months. What was the urgency behind the extension of recognition? Why was it so tempting for Germany and the EU to rush recognition of new states when most of them were disputed by their mother state and some were in the midst of a civil war? Was recognition perceived as a solution for resolving the conflict? Or was it viewed as a policy tool for ‘putting out fires’?

As mentioned in the introduction of this dissertation the crisis in Yugoslavia caught Europe by surprise and unprepared to deal with some of the gray areas of international law and politics. At the time when the crisis in Yugoslavia escalated, Europe was undergoing transformation. The number one agenda item was collectivity and collective approach to solving political and economic problems in the post Communist Europe. On the one hand, European Community (BC) wanted to engage in Yugoslavia and resolve the crisis while demonstrating its capacity for a common forei policy dictated by the terms of closer economic and political union to be signed at Maastricht on December 9-10, 1991. At the same time, the EC lacked a common policy on self determination and was under pressure to ensure that the union was successful and that it met all of its deadlines for complete unification. The crisis in Yugoslavia was EC’s first real test of its competencies and the ability of European countries to resolve a crisis in its backyard.

German politicians, eager to take the lead, stressed the need for a collective approach to the economic renewal and political stabilization of the state of the former Warsaw Pact. German President Richard von Weizsaecker called for a pan-European policy toward Eastern Europe. He promoted democratization of the East and encouraged economic assistance to the needy post-Communist countries in transition. Weizsaecker encouraged “cooperative pluralism” within Europe on matters of politics, economics and culture arguing that collective policy would put a ‘’pan-European peace structure” within reach. His primary worry was the temptation to lapse back into nationalist excess which he wanted to prevent by any means necessary. This is how he viewed what was taking place in Yugoslavia and suggested collective Western European policy as the answer to resolving the crisis.89

Susan Woodward in her book Balkan Tragedy explained that at the time the European security lay with the fate of the Soviet Union and its nuclear arsenal and Maastricht Treaty rather than with the conflict in the Balkans.90 She argues that the Yugoslav conflict was a reflection of the Soviet threat and that any direct confrontation with the Jugoslav National Army (JNA) would draw in the Soviet army and its nuclear arsenal. The Balkan crisis began when Croatia and Slovenia declared their independence on June 25, 1991. Two days later, fighting broke out between Slovenia and the Yugoslav People’s Army. At the beginning of the process on June 19, Germany had stated that Yugoslavia should remain united which was the same policy advocated by the United States, the Soviet Union, China Britain and France.91 However, German position changed. As early as July 1, Chancellor Helmut Kohl publicly demanded that the West acknowledge that the right of self-determination applied to the Slovenia and Croats.92

On July 3 hostilities broke out between Croatia and the Yugoslav People’s Army, later spreading to Bosnia and Herzegovina.94 German foreign minister, Hans-Dietrich Genscher took the lead by framing the recognition question in collective terms involving the EC, the CSCE, the Security Council, and the United Nations. Germany was eager to demonstrate that its Balkan diplomacy took place in concert with other states and with multilateral organizations. 93

On July 4, Genscher proposed that Slovenia and Croatia be given recognition based on the principle of self-determination. He also pointed out that Vatican participated with the European Union in its willingness to recognize the new republics. The Vatican indeed openly lobbied for the independence of both countries.96 France vetoed that idea, and Germany acquiesced.94 Genscher visited Yugoslavia in early July and held talks with officials in Belgrade. He returned to Bonn convinced that the internationalization of the crisis was the key in bringing the end to the fighting.95 Keeping in mind the French opposition to immediate EC recognition, Kohl met with President Mitterrand in late July 1991. As a result of that meeting, the two presidents issued a joint statement that it was “too early” to consider recognizing the breakaway Yugoslav republics.96 By August, despite having allowed Slovenia to leave after a half-hearted effort to force it to remain part of Yugoslavia, it was clear that the Yugoslav federal government had absolutely no intention of allowing Croatia to secede. By late August, foreign policy experts in Germany were arguing that recognition of Slovenia and Croatia could help ease tension by granting them status in international organizations, and in mid-September Volker Ruehe (CDU) and Karsten Voigt (SPD), who had vehemently opposed each other during the Gulf War, were united in support ofrecognition.97 The domestic pressure accompanied by the increased violence in Yugoslavia was followed by a statement by Genscher on September 4: “If those peoples of Yugoslavia who want to become independent are unable to achieve independence through negotiations, then we will recognize their unilateral declarations of independence under internationallaw”.98

Cease-fires were repeatedly violated and the German and Italian foreign ministers publicly evoked the possibility of separate recognition in Venice in mid-September.99 As the civil war escalated, on October I8, 1991 the parliamentary party voted by a margin of 68-57 to call for the recognition of Slovenia and Croatia.100 By beginning of November, Genscher began to move away from the general European consensus by openly discussing the need for tough sanctions, arguing for policies with the goal of making possible the recognition of Slovenia and Croatia by the European Community.101

Germany starting using the term “preventive recognition” and argued that the fighting in Croatia was a result of Serbian aggression against Croatia’s territory and its right to selfdetermination.102 Germany believed that the recognition of Croatian sovereignty would require Serbia to accept the fait accompli, enable international forces to intervene without the assent of the Yugoslav government and therefore lead more rapidly to a cease-fire than any negotiations would. It appeared that Germany firmly believed that recognition could be used as a political tool with legal implications. In this way, with one swift declaration of recognition, Germany would be able to extend recognition to Croatia which was its long time neighbor, economically and political supporter. By the same token from the international law perspective, Croatia would become an independent sovereign state. Therefore, this decision would internationalize the crisis, allowing for the EC military intervention if necessary. It seemed that Germany never considered the fact that there was no comprehensive peace plan for Yugoslavia and that the future of multi ethnic Bosnia and Herzegovina had not been resolved.

As Western leaders slowly began to recognize that Croatia and Slovenia would never rejoin the Yugoslav federation, with blame increasingly placed on the Serb as aggressors, Germany stepped up their efforts and pressure to encourage recognition. By mid-November the government was actively pursuing a policy aimed at gaining European recognition of Slovenia and Croatia, warning that recognition by Germany alone or by Germany, Italy and Austria would be counterproductive.103 The rest of the European Community wanted to follow the guidelines that it already established and the recommendations of the ad hoc committee whose task was to determine whether the aspiring entities satisfied the international criteria for recognition. Lord Carrington, who was in charge of the Conference on Yugoslavia and finding a peaceful solution to the crisis, fearing Germany’s premature action, wrote a letter to Hans van den Broek on December 2, 1991 in which he warned that premature recognition of Slovenia and Croatia by the EC ‘’would undoubtedly mean the break-up of the conference” and “might well be the spark that sets Bosnia-Herzegovina alight.” President Izetbegovic also made an appeal to Genscher in early December to not recognize Croatia prematurely, for it would mean war in his republic.104France was also adamant about the decision for all countries to wait until January 15. It was outraged at Germany’s decision to extend de facto recognition to Croatia and Slovenia prior to the set date. One of its most prominent daily newspapers stated that with that decision Germany was the “first to start destroying Yugoslavia”.105

President Tudjman and Chancellor Kohl met during the first week of December 1991, and one radio report of their talks reinforced the impression that the German government was sensitive to avoid appearances of breaking rank with Western European collective strategy. But Kohl assured Tudjman, and earlier on December 3 Slovene President Milan Kucan, that Germany would soon extend recognition.106 It is well-known that Helmut Kohl promised diplomatic recognition by Christmas. In Germany’s opinion, early recognition did not violate the emerging rule against unilateral conduct, so long as a number of states joined the act. German Foreign Minister Genscher, in a letter to the UN Secretary-General Javier Perez de Cuellar dated December 13, 1991, wrote the following: “As ascertained by the EC and the monitors, the Serbian leadership together with the Yugoslav National Army bear the main responsibility for the non-compliance in Croatia with the cease-fire and for the fact that the conference on Yugoslavia
has been stalemated for several weeks. To refuse recognition to those republics which desire their independence must lead to a further escalation of the use of force by the national Army which would construe it as a validation of its policy of conquest. . .Pursuant to the final Act of Helsinki and the Charter of Paris the borders in Europe are inviolable and must not be changed by force. Therefore, the EC had demanded respect for the internal and external boundaries of Yugoslavia”.107

After the decision has already been made, Hans-Dietrich Genscher had the difficult job of selling his European counterparts on a plan to make it a European rather than a German action. When Britain’s Lord Carrington finally did announce that recognition of the two republics was feasible and that Yugoslavia was indeed breaking up, one German newspaper ridiculed the slowness with which other Europeans were recognizing the obvious.108 In a manner that bruised some egos in Europe and irritated officials in the United States, Genscher used all his diplomatic skill to bring about an EC agreement to recognize Slovenia and Croatia by January 15, 1992. Germany moved first, granting recognition on December 23, 1991. Kohl described Germany’s unwillingness to abide by the agreement and wait until January 15 as “a great triumph for German foreign policy.“109 Ambassador Geehrt Aahrens, a prominent German, claimed that Germany was simply “ahead of the rest of Europe” and that it only acted on the inevitable. He claimed that Germany was not responsible for the continuation of fighting but rather that it prevented the crisis from escalating even further by soliciting the support of other European nations to recognize Slovenia and Croatia.110

Interestingly, even though the Vatican did not announce its official recognition of Slovenia and Croatia until January 13, 1992, as early as the end of November, the Vatican had proposed “agreed and conditioned” international recognition of Croatia and Slovenia. The Holy See stated that it would recognize only when the community of states, acting as a body, had ascertained that the entities had fulfilled the legal requirements for recognition. At the same time as some states declared recognition of the secessionist republics, Vatican spokesmen assured that the Holy See continued to recognize the Federal Republic of Yugoslavia, Msgr. Piero Pennacchini noted that “Yugoslavia’s death certificate has so far not been signed.” The Vatican followed the policy of the EC on recognition, echoing the collective EC position that the new republics, in order to win recognition, would have to illustrate respect for the principles enumerated in the Helsinki Final Act and the Paris Charter. The Vatican particularly emphasized that Croatia and Slovenia must make provision for human rights and fundamental liberties, implement safeguards for minorities, and promote democratization.111

As mentioned, the issue of German recognition is a highly controversial subject. Susan Woodward claims that the German decision to recognize had little to do with the Yugoslav conflict. She claims that public sympathies in Germany were already strong for Slovenia and Croatia by the spring of 1991 for many reasons mostly “the leanings of major mass media… the public relations campaigns of the Slovenes and Croats that portrayed their actions as a “fight for freedom and democracy”, the active propaganda from the Croatian emigre and astarbeiter community and the Catholic Church…and the public’s greater familiarity with Slovenia and Croatia through tourism.“112 Indeed the media campaign in Germany was rather strong in support for recognition.113 In Germany of 700,000 Yugoslav guest workers, 450,000 were Croat,114 This was used as a Croatian lobby to influence German citizens at most levels of society. Sabrina Ramet defended Germany claiming that it has been “unfairly blamed for exacerbating the Yugoslav conflicts”. She calls it the “myth of Germany’s supposedly premature and unilateral recognition” and argues that it was promulgated by Lord Carrington who according to her argument had close ties to Belgrade while harboring anti-German sentiments.115 James Gow attributes the German decision to recognition to Germany being sympathetic to two more countries striving for self-determination and to “throw off the communist yoke.“116

According to his view the conflict was perceived in Germany as a war of aggression by communist-led Serbia and the JNA against the emerging democracies in Slovenia and Croatia. Hence, the conflict was about the right of Slovenia and Croatia to selfdetermination.117 Genscher in his account explained that during October 1991, the Bonn’s pressure intensified largely due to the Serbian ‘coup’ in the Yugoslav federal presidency, the expiration of the three-moth moratorium on independence, the Serbs’ objection sot Carrington’s peace plan, and the siege of Vukovar and Dubrovnik. At the EC foreign ministers’ meeting in Haarzuilens, the Twelve agreed to postpone recognition for another two months while agreeing that it must be a part of a global settlements, as announced by the Dutch presidency on 10 October.118 According to Genscher this was interpreted by Germany as a binding commitment of the Twelve that recognition will be extended by 10 December 1991. On 8 November, Germany threatened immediate recognition of Croatia at the Twelve’s meeting of NATO Rome summit, but the joint declaration still insisted on recognition only as part of a global settlement. Germany decided to act unilaterally. Criticisms of unilateral action led to further support for collective process. Though advocated by many Germans, early recognition was questioned by some, indicative of a rising expectation for collective action. Critics of German recognition policy identified the alleged unilateral character of German diplomacy as an offense. An article in Sueddeutsche Zeitung, on December 21, cited public’s dismay at “Bonn’s unilateral proceeding.” It stated that “such a nationalist and non-collective diplomacy would harm the fabric of international order. In open disregard of the EC formula, German policy was a throwback to 19^th century European power politics.“119

The Serbo-Croatian war and the German reaction demonstrate that German policymakers were willing to take their own approach to policy. Many outside Germany interpreted the German position as reflecting a desire to spread influence into the region, showing that predictions of an assertive Germany wanting to spread power were coming true just a year after unification. French commitment to collective process on recognition was clearly expressed from the start and was evident in statements President Mitterrand made to French television on December 15, 1991: “Recognition can be automatic [if certain conditions are fulfilled]. It carries risks especially that of not changing what is actually happening on the ground. But if [it] is to become the reality, then it must take its place in the organization of the whole of Europe, and not be a risky undertaking between two peoples who are fighting and are ready to start again.120

Lord Carrington resigned his position as ECCY Chairman once recognition of Croatia and Slovenia was announced on January 15, 1992, believing recognition to be premature and likely to escalate the conflict.121 Recognition certainly did nothing to resolve the conflict. Recognition of Slovenia and Croatia sounded the alarm bells across the rest of Yugoslavia. Both Serbs and Croats rushed to carve up Bosnia. For Bosnia and Herzegovina this meant that it had to seek recognition or risk being divided between Serbia and Croatia. The plebiscites which were held in Bosnia resulted in an outbreak of fighting fiercer than ever. Both Serbs and Croats in Bosnia wanted to secure their territories before the decision was made on the fate of Bosnia and Herzegovina.

Recognition therefore could hardly be labeled as a preventive measure as argued by Germany. It was definitely premature, for it arrived before a comprehensive peace plan was established for the region. As such it was a wrong policy move and carried more weight and importance than most would have been able to predict. Recognition only aggravated the situation on ground and escalated the conflict.

 

New Normativity or Sphere of Economic Influence?

Europe has undergone numerous changes in the last two decades. On the one hand one can speak of the unification of Eastern and Western Germany and the unification of European Countries under the umbrella of the European Union. On the other the European Community was faced with the forces of dissolution in both Soviet Union and Yugoslavia. Along with those changes one had to determine how to deal with the new problems that came about, especially those that had to do with the rights of people with respect to statehood. These changes were accompanied by numerous conferences, charters and agreements between countries that were trying to establish new principles concordant with these new developments in the sphere of both politics and international law. The purpose of all of these agreements was to establish new guidelines, norms and122 EC Bulletin 1/ 2 (1992), p. 108, principles to be followed and abided by all countries in order to preserve peace and ensure stability in Europe.

One of the first conferences that promoted cooperation among countries in Europe was the Conference for Security and Cooperation in Europe (CSCE) created by the Helsinki Final Act of August 1, 1975.123 The Helsinki Final Act, though without binding legal effect, contained a number of statements on human rights and the security of Europe. The security aspect included confirmation of the post-1945 borders of Europe, and critics charged that the Final Act merely validated Soviet hegemony over Eastern Europe. The CSCE was clearly not an international institution in the traditional sense of the word but a political forum.124 Among the "Principles Guiding Relations between Participating States" agreed to in 1975 was respect for the "equal rights and self determination of peoples." Principle VIII states: "By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural
development." 125

The document further addressed the issues of sovereignty, human rights and non intervention into the affairs of other states. The end of the Cold War saw the adoption of the Charter of Paris126 for a New Europe on November 21, 1990 and the expansion of the CSCE's mandate into security issues more reminiscent of a genuine collective security organization. The Charter of Paris reaffirmed the equal rights of peoples and their right to self-determination in conformity with the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States.“127

Another Conference for Security and Co-operation in Europe took place between 5 and 29 June 1990. Its focus was the human dimension of the CSCE. The participating states, according to the Copenhagen Document, declared that they: "Recognize that pluralistic democracy and the rule of law are essential for ensuring respect for all human rights and fundamental fteedoms, the development of human contacts and the resolution of other issues of a related humanitarian character. They therefore welcome the commitment expressed by all participating States to the ideals of democracy and political pluralism as well as their common determination to build democratic societies based on free elections and the rule of law.“128

The European Union's "Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union", the Badinter Commission's Opinion No.3 of 11 January 1992 and the admission of Croatia and Bosnia-Herzegovina into the United Nations in 1992 were indicative of the international community's support for the transformation of the former republic boundaries into interstate borders. Serbia's actions in Croatia resulted in a mandatory arms embargo imposed on Yugoslavia in September 1991,129 economic sanctions from the European Union and United States in November 1991,130 and the imposition of U.N. peacekeepers.

The Helsinki Document of 1992, the Budapest Summit Declaration of 1994 and the Lisbon Summit Declaration on a Common and Comprehensive Security Model for Europe of 1996 created institutional structures which were to implement this wider mandate and symbolized the transformation of the CSCE into the Organization for Security and Cooperation in Europe (OSCE).131 These structures included the creation of an Office for Democratic Institutions and Human Rights (ODIHR), a Conflict Prevention Centre (CPC) and a High Commissioner on National Minorities (HCNM). Although the OSCE excluded the possibility of engaging in enforcement action, in the sense of Chapter VII of the UN Charter, it has developed the capacity to perform a wide range of tasks in relation to threats to international security resulting either from conflict between or within its member states and has been recognized as a regional agency in accordance with Chapter VIII of the Charter. Such activities have included peace-keeping missions, observer missions, fact-finding mission and election-monitoring.

All of the above conferences, agreements and documents are indicators of an effort made by European countries towards greater cooperation among the countries and a commitment to resolve conflicts and disputes in a peaceful manner through mediation. From the Helsinki Final Act and OSCE to the "Guidelines on Recognition of New States", European countries are showing more resolve in cooperating together and working closely to establish universal standards and norms that will guide the policy and decision-making in Europe.

In analyzing the international response to the crisis in Yugoslavia, it is apparent that the international community was not prepared and did not have proper policy tools to respond immediately. Some scholars and authors have tried to argue that we live in a complex world in which we cannot afford to look at issues as 'black and white' and that we should analyze different 'degrees of recognition' depending on the circumstances and whether an entity has been fully formed as a state or is in the process of formation at the time ofrecognition.132 If that was the case than all actions of states could be justified and we would not have to worry about any standards and states would not have to take any responsibility for their actions. In reality, as Under Secretary General of the United Nations Danilo Turk pointed out, recognition creates responsibility on the part of the recognizing state and as such should not be taken lightly.133 By organizing the European Conference on Yugoslavia, the international community led by the efforts of the European Community attempted to resolve the crisis by negotiations and diplomatic dialogue. The Conference responded by creating an ad hoc committee composed of international lawyers that would aid in analyzing the problem from the perspective of international law and make recommendation to policy makers. The so-called Badinter. Commission met and used the new Guidelines for the recognition of states to determine whether Slovenia, Croatia and Bosnia-Herzegovina were to be recognized. If the European countries abided by the recommendations of the Commission and the process went smoothly, one might be able to conclude that there is a new normativity for the recognition of states and that new standards have been set. This would clearly show that the international community has embarked on a new era in which international law has become more prominent and is setting the standards for political and economic cooperation.

However, the events which took place as described so far clearly demonstrate that the economic and political influence still continue to outweigh the efforts of establishing new normativity. In turn one cannot but conclude that the efforts towards new normativity and standards are but a facade for 2151 century power politics i.e. politics of economic and political influence. The fact that German government exercised strong influence and exerted pressure on other countries to recognize Slovenia and Croatia and proceeded to make official promises to Zagreb that they will grant Croatia recognition even prior to receiving recommendations of Bad inter Commission is stunning. Such actions publicly ridiculed the work of the Commission and made their findings irrelevant. Its recommendations instantly lost credibility not only in the eyes of the EC but also with respect to aspiring states. In their mind they did not need to concern themselves with the work of the Commission or the Conference on Yugoslavia. So long as they had the support of a leading, most-powerful state in Europe, their future as an independent state was guaranteed.

This is also the answer to the question of why effectivity or the cessation of fighting was ignored. By the time the recognition of Slovenia, Croatia and Bosnia and Herzegovina took place, the three Yugoslav ethnic groups collected a notebook full of lessons learned. The first one was that the international community was disorganized and did not have a clear policy with respect to Yugoslavia. Even if the rules and norms were set in place with clear deadlines, they could be overridden and ignored by simple actions of powerful nations such as Germany. International policy with respect to Yugoslavia was affected daily, and decision-making changed, based on what was happening on the ground. Therefore those that had political agendas realized that they could manipulate the political decision-making by mobilizing people on the ground and making further advancements towards their goals. Another lesson learned was that the Guidelines and procedures set in place failed in comparison to the weight and muscle a powerful nation such as Germany could exercise with respect to determining the course of events. Even though Croatia had unresolved issues with 100,000 Serbs living on its territory and issues with its Constitution not addressing the rights of minorities, it still received international recognition. In addition, Bosnia and Herzegovina which was divided between Muslims, Croats and the Serbs who also boycotted the referendum on independence received recognition shortly thereafter. This decision was made irrespective of the recommendations of Mr. Badinter who felt that it was premature to recognize a country which still had an internal conflict over territory. Another lesson learned was a confirmation of a well-known fact that the EC had no enforcement power, therefore another resolution against Serbs or another warning or a set of sanctions could not even be considered as a threat or action that would prevent any ethnic group from pursuing its goals. On top of all of those lessons, in any civil war there are forces and individuals in favor of continuation of a war that, from the economic perspective can be quite profitable. This leads us to conclusion that although there is a strong evidence of the effort among European states to create new standards, norms and guidelines for the recognition of new states, the process is still thwarted by the actions and decisions of powerful nations which are basing their decisions on their political interests, historical ties and economic sphere of influence. So long as this practice is accepted, there will be no uniform standards and any effort towards cooperation will be perceived with skepticism and doubt resulting in failure.

 

From Belgium to Kosovo P.1.

From Belgium to Kosovo P.2.

From Belgium to Kosovo P.3.

From Belgium to Kosovo P.4.

From Belgium to Kosovo P.5.

From Belgium to Kosovo P.7.

 

1 EC foreign policy is guided by each of the Community's countries in turn for six-month periods on a rotational basis. To improve continuity the current Community President forms a troika with its predecessor and successor. When war broke out in Slovenia, Luxembourg was head of EC foreign policy while Italy and the Netherlands made up the rest of the troika. On 1 July Luxembourg handed over the Presidency to the Netherlands and Portugal replaced Italy within the troika. Jacques Poos (Luxembourg), Gianni De Michelis (Italy) and Hans van den Broek (the Netherlands).

2 International Herald Tribune, Croatian Leader Warns of Crisis, May 15, 1991 p. 2

3 Interview with Ambassador Zimmerman.

4 Baker Backing for United Yugoslavia, Financial Times, London June 22123. 1991, p. 2.

5 EC Bulletin 3-1991,71. The Dissolution of Yugoslavia and the Badinter Arbitration Commission, p. 72

6 Weller, supra n.5, p. 604

7 For the full text of the Accord, see Trifunovska, S. Yugoslavia through Documents from its Creation to Dissolution, (1994) Nijhoff, 311-5.

8 Christopher Bennet, Yugoslavia's Bloody Collapse: Causes, Course and Consequences, p. 159.

9 Steve Terrett, The Dissolution of Yugoslavia and the Badinter Arbitration Commission, p. 74

10 EC Bulletin 7/8 - 1991, p. 107.

11 Ibid.

12 See Trifunovska, Yugoslavia Through Documents from its Creation to its Dissolution (1994), p. 116. See also the European Parliament resolution of 10th October 1991, which"... deplored the failure of the parties involved in the conflict, and the federal army in particular, to observe cease-fires"/ EC Bulletin 10,1991, 71. An EPC statement of 6th October noted the use of". .. disproportionate and indiscriminate use of force..." by the JNA, which had shown itself to be "...no longer a neutral and disciplined force". EC Bulletin 10-1991, p. 86.

13 Ibid.

14 Milosevic's statement on Radiotelevizia Beograd 'Daily News'.

15 Interview with Boris lovie, Discovery Channel Series, Yugoslavia: Death of a Nation, 1995.

16 EC Bulletin 7/8 - 91 at 108. See Bohr, E., 'sanctions by the UN Security Council and the EC', (1993), 1 EJIL, p. 35.

17 Susan Woodward, Balkan Tragedy, p. 168.

18 Snezana Trifunovska, Former Yugoslavia Through Documents From its dissolution to the peace settlement, p. 51.

19 Peter Carrington had been the UK's Foreign Minister under Mrs. Thatcher and had been instrumental in resolving the Rhodesia crisis, which resulted in the independence of Zimbabwe in 1980. He had then become Secretary General of NATO and had retired from political office when be was asked to become the EC's special envoy for Yugoslavia. Liverpool University Recorder (1996).

20 EPC statement 3'd September, EC Bulletin pp. 9-91, 63.

21 EC Bulletin 9-91, p. 65.

22 Laura Silber and Allan Little, Yugoslavia: Death ofa Nation, p. 148.

23 The Draft Convention was basically a looser version of the EC's own constitution. It proposed a "free association amongst sovereign and independent republics with international personality for those that wish it...comprehensive arrangements, including supervisory mechanisms, for the protection of human rights and special status for certain groups and areas. For the full text of the Draft Convention, see Trifunovska, supra, n.29 357-65.

24 UN Doc. S/23169, Annex VI

25 Snezana Trifunosvksa, Former Yugoslavia Through Documents From its dissolution to the peace settlement p. 51.

26 Steve Terrett, The Dissolution of Yugoslavia and the Badinter Arbitration Commission, p.80

27 Susan Woodward, Balkan Tragedy, pp.176, 465.

28 Interview with Robert Badinter.

29 Snezana Trifunovska, Former Yugoslavia Through Documents From its dissolution to the peace settlement p. 52.

30 Calendrier de la crise Yougoslave, p. 15. See Woodward, p. 178.

31 Unofficial translation provided by the German Permanent Mission to the United Nations.

32 Weller, "The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia."p. 575.

33 Susan Woodward, Ballum Tragedy, pp. 186-187.

34 Steve Terrett, The Dissolution of Yugoslavia and the Badinter Arbitration Commission, p. 81

35 Ibid.

36 Silber, supra n. 8,219; Weller, supra 0.5,588

37 Government to Recognize Croatia, Slovenia, Hamburg DPA in German 12:30 GMT, November 27,1992 (FBIS-WEU-91-223)

38 Steve Terrett, The Dissolution of Yugoslavia and the Badinter Arbitration Commission, p.82

39 See Council Regulation 545/92, BC Bulletin 1/2 (1992), p. 85.

40 BC Bulletin 1/2 (1992), p.108.

41 EPC Statement 10111 March 1992, EC Bulletin 2 (1991) p. 101.

42 EC Bulletin 7/8 (1991), pp. 115-6

43 Since Yugoslavia had not accepted the Optional Protocol to The Statute of the International Court of Justice, the ICJ was not an option for resolving the differences at hand. Furthermore, the ICJ can only hear disputes between States and not disputes between a State and sub-State actors. See the Statute of the International Court of Justice, Article 34(1) states that "only states may be parties in cases before the court".

44 Pellet, professor at University of Paris X and at the IEP (Paris) and Member of the International law Commission, served as legal advisor to the Badinter Commission. He wrote of the Commission in 1992, "Though its balanced and impartial decisions, the Arbitration Committee of the Peace Conference on Yugoslavia has furnished proof that such an organ can provide a great service. This example must be recognized and used as a building block in the search for mechanisms to resolve ethno-territorial conflicts." 3 EnL, p. 181.

45 Alain Pellet, "The Opinions of the Badinter Arbitration Committee: A Second Breath for the SelfDetermination of Peoples," EJIL, p. 178.

46 The Commission represents the executive organ of the BC.

47 Pellet, p. 331

48 Craven, p. 337. For the text of these rules, see GA Resn. 1262 (XI) 1958 in Terrett p. 122.

49 The method of selection stated the following: i) two members [will be] appointed unanimously by the [Yugoslav] Federal presidency; ii) three members [will be] appointed by the Community and its Member States".

50 Interview with Robert Badinter.

51 Badinter was obviously a popular choice for the president of the commission considering his interest in international arbitration and his pioneering attempts to create a Court of Arbitration and Conciliation within the CSCE mechanism. The Court was created under the Stockholm Convention on Conciliation and Arbitration, reprinted at (1993), 4 EJIl, 24. Monsieur Badinter became the President of the Stockholm court, which became operational in September 1996, however it has never been used.

52 Letter cited in B.G. Ramcharan, The International Conference on the Former Yugoslavia: Official Papers. Vol. 2, p. 1259.

53 Steve Terrett, The Dissolution of Yugoslavia and the Badinter Arbitration Commission, pp. 149 150

54 In Slovenia, by a referendum in December 1990, followed by a declaration ofindcpendence on Jooe 251/1, 1991, which was suspended for three months and confirmed on October gl/l, 1991; and in Croatia, by a referendum held in May 1991, followed by a declaration of independence on June 251/1, 1991, which was suspended for three months and confirmed on October, gl/l, 1991.

55 Opinions of the Arbitration Commission, Opinion No.1, Cited in B. G. Ramcharan The International Conference on the Former Yugoslavia: Official Papers, Volume 2, pp. 1259-1261.

56 Ibid.

57 Opinions of the Arbitration Commission, Opinion No.1, Cited in B. G. Ramcharan The International Conference on the Former Yugoslavia: Official Papers, Volume 2, pp. 1259-1261.

58 Ibid.

59 Steve Terrett, The Dissolution of Yugoslavia and the Badinter Arbitration Commission, p. 151

60 Opinions of the Arbitration Conclussion, Conference on Yugoslavia Arbitration COl1U1Uttee Opinion 1, in B. G. Ramcharan. the International Conference on the former Yugoslavia; Official Papers, p. 1261.

61 Thomas D. Grant, The Recognition of States: Law and Practice in Debate and Evolution, p.157. 650 The Draft Convention on Yugoslavia had been drawn up by the European Conference on Yugoslavia and issued November 4, 1991. As of December 16, the Draft Convention was under review by the Conference. Text draft Convention is available in B.G. Ramcharan pp. 13-57.

62 Thomas D. Grant, The Recognition of States: Law and Practice in Debate and Evolution, pp. 157-158. 652 EPC Press Release 128/91, Dec. 16, 1991.

63 Available in Recognition of States: The Collapse of Yugoslavia and Soviet Union, EJIL, vol. 14, no. 1.

64 EPC Press Release 129/91, Dec. 16, 1991.

65 Thomas D. Grant, The Recognition of States: Law and Practice in Debate and Evolution, p. 158. 656 Steve Terrett, The Dissolution of Yugoslavia and the Badinter Arbitration Commission, p.152

66 Robert Badinter, Opinion 2 of the Commission, Paris 11 January 1992, B. O. Ramcharan p.1262.

67 Opinion 2 of the Arbitration Commission, in B.O. Ramcharan, The International Conference on Yugoslavia Arbitration Commission, p. 1262.

68 The Vienna Convention on the Law of Treaties, Article 53, defines such a right as" ...a peremptory norm of international law . . . a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character". See also Article 64. See also Jennings, R., and Watts, A., Oppenheim's International law: Ninth Edition Volume I, (1992), Longmans, 4-7; Weisburd, M., 'The Emptiness of the Concept of Jus Cogens as Illustrated by the war in Bosnia-Herzegovina', (1995), 17 MicbJIL, I.

69 The International Convention on Civil and Political Rights (ICCPR) and the International Convention on Economic, Social and Cultural Rights (ICESCR) both include the same opening article which states that "All peoples have the right to self-determination. By virtue of that rights, they freely determine their political status and freely pursue their economic, social and cultural development".

70 Steve Terrett, The Dissolution of Yugoslavia and the Badinter Arbitration Commission, p. 155

71 Opinion 3 of the Arbitration Commission, cited in B. G. Ramcharan, The International Conference on the corner Yugoslavia: Official Papers, p. 1263.

72 Steve Terrett, The Dissolution of Yugoslavia and the Badinter Arbitration Commission, p. 156.

73 The Friendly Relations Declaration, Helsinki Final Act and the Carrington Draft Convention were cited as authority for this issue. Resolution GA Res. 2625 (XXV)

74 Steve Terrett, The Fragmentation of Yugoslavia and the Badinter Arbitration Commission, p. 163.

75 The question asked at the plebiscite was "Should Slovenia become a sovereign and independent State? According to figures provided by the Republic 88.5% voted for independence at 4% against. Cited in Opinion 7 paragraph 1, reprinted at (l992)31/LM, 1513.

76 Opinion 4 of the Arbitration Conunission cited in B. G. Ramcahran, The International Conference on the Former Yugoslavia: Official Papers, p. 1268

77 Ibid. p. 1268.

78 The Referendum posed a question "Are you for the sovereign and independent Bosnia and Herzegovina composed of sovereign citizens, the people of Bosnia and Herzegovina - Muslims, Serbs, Croats and members of other nationalities who live in Bosnia and Herzegovina". S/uzbeni List, RBiH br. 2; 27. January 1992.

79 The total number of eligible voters in Bosnia and Herzegovina was 3,253,847. Out of this number 2,073,568 voters came to vote. The number of voters that were for an independent state was 2,067,969 or 63.14%. Against were 6,037 voters or 0.29%. Therefore 99 % of those who voted were for an independent Bosnia and Herzegovina. Sluzbeni List RBiH, br. 7; 27 March 1992.

80 See Susan Woodward, Balkan Tragedy.

81The official date for the recognition of Bosnia and Herzegovina was adopted as April 7, 1992 due to diplomatic objection trom Belgrade. This date of April 6 coincided with the bombing of Kingdom of Yugoslavia by Germany in 1941. Susan Woodward claims that it was the US that objected and pushed for April 7.

82 Interview with Robert Badinter, April!, 2003. Paris, France.

83 Article 2 (c) stated that areas in which persons belonging to a national or ethnic group from a majority would enjoy 'special status' which allowed such areas to..have and show the national emblems of that group; the right to a second nationality... in addition to the nationality of the republic; and education system which respects the values and needs of that group; a legislative body; and administrative structure, including a regional police force; [and] a judiciary responsible for matters concerning the area which reflects the composition of the population of that area". See Trifunovska, Supra. 98, 359

84 Ramcharan, The International Conference on the Former Yugoslavia: Official Papers, E.1270.

85 Yugoslav Federal-Presidency Position, 18th December 1991, reprinted in Trifunovska, p. 98, pp.475-8.

86 Yugoslav Federal-Presidency Position, 18th December 1991, reprinted in Trifunovs1ca, p. 98, pp.475-8. 678 Trifunovska Supra. N. 98 p. 482.

87 Such challenges are common ftom those who perceive that their interests are not being protected by the organ in question and indicate a loss of faith in the relevant dispute resolution process. The withdrawal of American participation in the Nicaragua v. USA Case evidences this point perfectly. See also Joffe, supra n. S4 239. Schermers p.467 in Terret p. 186.

88 Opinion 8 of the Arbitration Commission in B. G. Ramcharan, The International Conference on the former Yugoslavia: Official Papers, p.1286.

89 "Weizsaecker Urges More Help for Eastern Europe," Hamburg DPA in German 0709 GMT January 9,1992 (FBIS-WEU-006).

90 Susan Woodward, Balkan Tragedy, p. 177.

91 Parliamnetarische Protokolle der deutschen Budnestag (Parliamentary Protocols of the German Federal Assembly), 12/33 (Bonn: Government Printing House, June 19, 1991), p. 2

92. as cited in Beverly Crawford, "Explaining Defection from International Cooperation: Germany's Unilateral Recognition in Croatia," World Politics 48, no. 4 (July 1996): 493.

93 Sabrina P. Ramet, 'German Foreign Policy Towards the Yugoslav Successor States, 1991-1999', p. 49.

94 Carl Cavanagh Hodge, "Germany and the Limits of Soft Security," European Security, Vol. 7, No.3, 1998; Beverly Crawford, "Explaining Defection fTom International Cooperation, Germany's Unilateral Recognition of Croatia," World Politics, No. 48, July 1996, pp. 482-521.

95 "Genscher Wants European Response to Commonwealth." Hamburg DPA in German 1158 GMT, January 2, 1992 (FBIS-WRU-92-001).

96 Susan Woodward, Balkan Tragedy, p. 149.

97 Ramet and Coffin, German Foreign Policy Towards the Yugoslav Successor States, 1991-1999, p. 49.

98 Genscher acted as the chair of the Conference on Security and Cooperation in Europe (CSCE) and the Western European Union (WEU) Council of Ministers. On July 8, the EC troika of foreign ministers flew to Belgrade in hopes of broke ring a ceasefire. See Sabrina Ramet, p. 49.

99 Sabrine P. Ramet, "Yugoslavia and the Two Germanys," in The Germans and Their Neighbors, ed. Dirk Verheyen and Cristian Soe (Bouilder, CO: Westview, 1993), p. 329.

100 Werner Perger, "Ein Weg voller Dornen," Die Zeit, September 12, 1991.

101 Reneo Lukic and Allen Lynch, Europe from the Balkans to the Urals: The Disintegration of Yugoslavia and the Soviet Union (New York: Oxford University Press, 1996), p. 271. Christian Hacke, Weltmacht wider Willen: Die Aussenpolitik der Budnesrepublik Deutschland (World Power Against Its Will: The Foreign Policy of the Federal Republic of Germany) (Frankfurt: Ullstein, 1993), p. 489.

102 Agence Europe, 16-17 September 1991.

103 Helmut Loelhoeffel, "Streit ueber Anerkennung," Frankfurter Rumlschau, October 14,1991; Eckart Strohmaier, Parl-Polit-Pressedienst, October 16,1991.

105 Hans Dietrich Genscher, Journal am Morgen (Femseh-Hoerfunkspiegel), November 19, 1991.

103 Susan L. Woodward, Balkan Tragedy: Chaos and Dissolution after the Cold War, p. 183.

104 Ulrich Inner, spokesperson for European affairs of the FDP, DLF -lnformationen am Mittag, November 13, 1991.

105 Woodward, p. 184.

106 Glas - Serbian daily newspaper, taken from French daily newspaper France Soire, December 12, 1991.

108 "Tudjman Briefs Kohl on SFRY Situation," Hamburg DPA in German 1403 GMT, December 5, 1991-FBIS- WEU-91-0 I 5).

109 Unofficial translation, furnished by the German Permanent Mission to the United Nations. Cited in Marc Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, The American Journal of International Law, Volume 86, Issue 3 (Jul. 1992), p. 587.

110 "All zu spaete Einsicht." Sueddeutsche Zeitung, December 9, 1991.

111 On December 17 at the CDU-CSU party congress at Dresden, Kohl announced the triumph in his opening address that Germany would recognize Croatia and Slovenia on December 19 and added "the Croats will not be left alone." John Tagliabue, "Kohl to Compromise on Yugoslavia," New York Times, December IS, 1991, A3.

112 Interview with Ambassador, April, 2003.

113 "Vatican Officially Recognizes Slovenia, Croatia," Rome ANSA in English 0803 MT, January 14, 1992-FBIS- WEU-92-009).

114 Susan Woodward, Balkan Tragedy, pp. 184-185.

115 The impact of the early campaign of the influential Frankfurter Allgemeine Zeitung (FAZ) was substantial. Most other media jointed unanimously in the FAZ's views by late summer. Many observers agree that the German media coverage was strongly pro-Croat and Slovene, and that the media bias remained largely unchallenged. See Financial Times, 16 December 1991.The conflict was portrayed as the struggle of helpless, democratic and westernized Slovenes and Croats which is why there was a strong antiSerbian feeling in Germany. See Silber and Little, p. 198.

116 The Times, 19 December 1991.

117 Sabrina P. Ramet. p. 62.

118 James Gow, Triumph of the Lack of Will, p. 168.

119 Ibid.

120 Interview to the Austrian 'Die Presse' - see Genscher (1995), p. 954.

121 Dieter Schroeder, "Germany's Lone Hand," Sueddeutsche Zeitung in German, December 12, 1991, p. 4-FBIS- WEU-92-006)

122 France Statements, The French Embassy and Information Service, Excerpts ftom an interview with Francois Mitterand, President of the Republic, Broadcast on French Television, December 15, 1991.

123 Conference on Security and Cooperation in Europe, Final Act, Helsinki 1 August 1975, text of the Act obtained from the Hellenic Resources Institute, Inc.

124 Weller, M., 'The EU Within the 'European Security Architecture', in Koskenniemi, M (cd.), International Law Aspects ofthe European Union, 1998, Kluwer, 57, p. 78.

125 Conference on Security and Co-operation in Europe, Final Act, Helsinki 1 August 1975. Hellenic Resources Network.

126 Text of the Charter of Paris obtained from the OSCE office. The Conference took place in Paris, 19-21 November 1990.

127 Conference for Security and CO-Operation in Europe: Charter of Paris for a New Europe, Nov. 21,1990,30I, L.M. 190, 197

128 Conference for Security and Co-operation in Europe, 5-29 June 1990, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE. Available at www.osce.org

130 SIRES/713 September 1991.

131 Jean-Pierre Pussochet, "The Court of Justice and International Action by the European Community: The Example of the Embargo Against the former Yugoslavia." Fordham International law Journal 20 (June I997): 1557-76. 131 McGoldrick 'The Development of the CDCE After the Helsinki 1992 Conference', (1993), 42 ICLQ, 41 I; McGoldrick,; The CSCE: From Process to Institution', in McGoldrick and B.S. Jackson (eds.), Legal Visions ola New Europe. (1993), LUP, p. 135.

132 Interview with Janez Bugajski, Director of the Easter European Project at Center for Strategic and International Studies.

133 Interview with Danilo Turk.

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