EC - Arbitration Commission of the European Conference on Yugoslavia
The Arbitration Commission of the Conference on Yugoslavia (commonly known as Badinter Arbitration Committee) was a commission set up by the Council of Ministers of the European Economic Community on 27 August 1991 to provide the Conference on Yugoslavia with legal advice. Between November 1991 and the middle of 1993, the Arbitration Commission handed down a series of opinions on "major legal questions" raised by the conflict between several republics of the Socialist Federal Republic of Yugoslavia (SFRY) and pertaining to the fragmentation of Yugoslavia.
Opinion No 1 (Dissolution of SFRY): asked if some republics seceded from SFRY, which, as Serbia and Montenegro had claimed, continues to exist, or did SFRY dissolve and all of the republics were equal successors to the SFRY. The commission replied that "the Socialist Federative Republic of Yugoslavia is in the process of dissolution".
Opinion No 2 (Self-determination): "Does the Serbian population in Croatia and Bosnia and Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination?" The commission concluded that "that the Serbian population in Bosnia and Herzegovina and Croatia is entitled to all the rights concerned to minorities and ethnic groups" and "that the Republics must afford the members of those minorities and ethnic groups all the human rights and fundamental freedoms recognized in international law, including, where appropriate, the right to choose their nationality".
Opinion No. 3 (Borders): "Can the internal boundaries between Croatia and Serbia and between Bosnia and Herzegovina and Serbia be regarded as frontiers in terms of public international law?" Applying the principle of uti possidetis, the commission concluded that "the boundaries between Croatia and Serbia, between Bosnia and Herzegovina and Serbia, and possibly other adjacent independent states may not be altered except by agreement freely arrived at" and "except where otherwise agreed, the former boundaries become frontiers protected by international law."
Opinion No 4 (Bosnia and Herzegovina): asked whether the independence of Bosnia and Herzegovina should be recognized. The Commission decided that it should not at the time, because unlike the other republics seeking independence, Bosnia and Herzegovina had not yet held a referendum on independence.
Opinion No 5 (Croatia): considered the application of Croatia for the recognition of its independence. The Commission ruled that Croatia's independence should not yet be recognized, because the new Croatian Constitution did not incorporate the protections for minorities required by European Community. In response, to this decision, the President of Croatia wrote to Robert Badinter giving assurances that this deficit would be remedied, and given these assurances the European Community recognized Croatia.
Opinion No 6 (Macedonia): recommended that the European Community accept the request of the Republic of Macedonia for recognition, holding that the Republic had given the necessary guarantees to respect human rights and international peace and security. The EC was initially reluctant to accept the recommendations because of Greek opposition.
Opinion No 7 (Slovenia): recommended that the EC recognize Slovenia.
Interlocutory Decision: rejected Serbian and Montenegrin objections to its competence to respond to three references, which resulted in Opinions 8, 9 and 10.
Opinion No 8 (Completion of the process of the dissolution of the SFRY): decided that the legal process had completed, and that the SFRY no longer existed.
Opinion No 9 (Settlement of problems of state succession): considered how the problems of state succession resulting from the cessation of the SFRY should be resolved. It ruled that they should be resolved by mutual agreement between the successor states, with an equitable division of the international assets and obligations of the former SFRY. It also decided that the membership of the SFRY in international organizations could not be continued by any successor state, but that each state would have to apply for membership anew.
Opinion No 10 (Federal Republic of Yugoslavia - Serbia and Montenegro): ruled that the FRY (Serbia and Montenegro) could not legally be considered a continuation of the former SFRY, but was rather a new state. Thus the EC should not automatically recognize the FRY, but apply to it the same criteria applied to the recognition of the other post-SFRY states.
Criticism of Opinion No 3: Apart from principles of international law, the Badinter Commission sought to justify the relevance of the Badinter Borders Principle by reference to Article 5 of the 1974 Constitution of Yugoslavia. The Commission said that the Badinter Borders Principle applies all the more readily to the Republics since Article 5 §§ 2 and 4 of the Constitution of the SFRY stipulated that the Republics’ territories and boundaries could not be altered without their consent; in that, it was guilty of selective quoting of Article 5:
(1) The territory of the SFRY is indivisible and consists of the territories of its socialist republics.
(2) A republic’s territory cannot be altered without the consent of that republic, and the territory of an autonomous province - without the consent of that autonomous province.
(3) A border of the SFRY cannot be altered without the concurrence of all republics and autonomous provinces.
(4) A border between republics can only be altered on the basis of their agreement, and in the case of a border of an autonomous province - on the basis of its concurrence.
Relying on Article 5 §§ 2 and 4, the Commission ignored Article 5 §§ 1 and 3 and was justifying the division of the SFRY and the alteration of its international borders in violation of these provisions. Furthermore, it can be argued that the territorial integrity of republics and the sanctity of their borders referred to in Article 5 §§ 2 and 4 only applied in the context of the Yugoslav state whose own territorial integrity and borders remained in place. A republic seeking to violate Article 5 §§ 1 and 3 could hardly reap the guarantees contained within.
Accordingly, neither the international law principles of respect for the territorial status quo and uti possidetis nor the provisions of Article 5 of the Constitution of the SFRY (1974) provides any justification for the Badinter Borders Principle.