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Citizenship, Sovereignty and Soft Borders in Southeast Europe
Christian Tomuschat, Berlin
I.Introduction
It is not easy for a person who has only a limited personal experience with South East Europe to set out his views on current developments in that region in an introductory contribution to a symposium supposed to provide some guidance to future developments. Indeed, the territorial contacts of the present author have been scarce, contrary to ties of personal friendship with a number of “Yugoslavs” who, after the break-up of their home State, had to define their new national identitywilly-nilly.[1]. My main connection with the region came about quite surprisingly in December 1991 when I was sent by the German Federal Government to Zagreb,at a time when the war was still raging, to look into the guarantees provided by the new Croatian Constitution and the relevant legislation to ethnic minorities.[2] When with the assistance of many truly knowledgeable persons the conclusion was reached that the newly introduced regime was not marred by unacceptable discrimination – according to black letter law -, Chancellor Kohl recognized Croatiaone day before Christmas eve, to the dismay of Germany’s partners in the European Community who followed suit only three weeks later, on 15 January 1992. Additionally, shortly before that, in September 1991, I had been a member of a CSCE delegation[3] which visited Albania in order to find out whether the internal situation corresponded, or was on the way, to the relevant standards established within the CSCE region. Lastly, this author wrote a few articles two articles on Kosovo from a legal viewpoint[4]and edited a book on the conflict[5]– that is all. Thus, it seems almost preposterous to lecture you on the situation of the region. Therefore, the following observations will be confined to fairly general statements although it seems inevitable, from time to time, to make a few comments that may irritate some of those who can rightly call themselves specialists, above all by having lived in the region and thereby having become direct witnesses of the tragic occurrences.
The first thing an outside observer notes when having a look at the title is that the word “Balkans” has been carefully avoided. Southeast Europe sounds more neutral, more sober. Indeed, the word “Balkans” has acquired a negative connotation not only here in Germany through a history which the public in Western and Central Europe has never understood completely, a history of turmoil and revolutions, of which mostly the dark sides and not the promising and future-oriented aspects have been highlighted. Balkanization has become a suspicious word carrying all the evils of instability and disorder.[6]And, furthermore, nobody knows really what territory is encompassed by the “Balkans”. Do they start already in Austria as sarcastic voices suggest? And is Greece a part of the Balkans or a special territorial unit that stands apart? In any event, all the reluctance vis-à-vis the Balkans is reflected in the famous words by Bismarck which I do not want to reiterate here because they are too well known to elicit any curiosity. Bismarck realized that the Balkans were a region which, though far away, threatened stability in western Europe, in particular the stability of Germany’s ally Austria whose main territories lay to the east of Vienna.
II.The Balkans – a Region in Transition
Since the 18th century, the Balkans have been a region in transition. For hundreds of years, the Ottoman Empire had been the dominant force. When Greece became independent in 1830, the process of national emancipation became irreversible. At the same time, Serbia obtained a large degree of autonomy as a principality within the Ottoman Empire. Other sections of the Ottoman Empire got gradually under Austrian jurisdiction. The defeat of Austria and of the Ottoman Empire in World War I opened up a new chapter of history in the region. From the ashes of those empires, new States emerged, in particular the Kingdom of Serbs, Croats and Slovenes and Albania in the south of the region. The 20 years until the outbreak of World War II were not really years of happiness in the YugoslavState. The Kingdom did not find its internal unity. In particular, the tensions between Serbs and Croats did not abate.[7] World War II brought again heavy suffering to the region. At the end of the war, the communists took over, making their ideology the glue that should keep the country together. When in 1990 socialism as a political philosophy broke down, Yugoslavia also collapsed very quickly. Its dismemberment produced in different stages six new States which all were admitted fairly swiftly to the United Nations as successor States. Only Kosovo as the seventh State still stands ante portas. Recognized by 75 States, but not by Russia and China, and not even recognized by all the States members of the European Union[8] although the International Court of Justice found its Declaration to be unobjectionable from the viewpoint of international law,[9] it remains in limbo.Not even admission to the Council of Europe has been secured although no veto power exists there. New members can be admitted by a vote of two thirds of the members. Information easily accessible to the public does not reveal how the present stalemate is to be explained. Two answers are conceivable. Either the necessary two thirds cannot be mustered, or there is still a hope that within a short time a consensual solution can be reached. In particular, the dissidents in the European Union[10] should be susceptible of being persuaded that the case of Kosovo is not a precedent that could harm their territorial integrity. In particular, Spain’s preoccupations seem almost ludicrous in that the autonomous communities seeking to become independent in the long run, Catalonia and the BasqueCountry, do not suffer from any discrimination within Spain, but enjoy privileges envied by all the other communities of the country.
Why am I telling all this, things which you all know much better than me? Because they constitute the backdrop of what I am now trying to put before you as a conceptual construction which requires as its basis some factual elements in order to acquire at least a certain degree of plausibility.
III.National and Ethnic Identities
Apparently, after the demise of the communist or socialist ideology, the different ethnic groups of the Socialist Federal Republic of Yugoslavia discovered that they had very little in common. Only a small part of the population felt that they had a truly “Yugoslav” identity that should not be downgraded to an ethnic or tribal identity. But this was a fairly small percentage of the overall population. To declare oneself a Yugoslav was also a sign of intellectual modernization. This process of modernization should also have revamped the governmental structures and the traditional lines of thinking in society. It seems that the majority in the other ethnic groups than the Serbs resented having been marginalized by the prevalent Serb influence in all key positions of societal life. What had begun in 1918 as a trinity of Serbs, Croats and Slovenes had progressively become a system of hegemonic leadership of the Serbs – and the other ethnic groups, in particular the Albanians in Kosovo, were even further down in the hierarchy of power. The charges which before World War I had been directed against the Austro-Hungarian Empire, to wit that it had become a “Völkergefängnis”, a prison of peoples, were now directed against the Socialist Federal Republic of Yugoslavia (SFRY), at least indirectly.
Thus, itmay not be too far-fetched to argue that the dismemberment of the SFRY amounted to some kind of process of decolonization. The peoples in the Balkans and particularly in the territory of Yugoslavia had been under foreign domination for hundreds of years, first by the Turks and the Austrians, later the Serbs who were of course not colonial rulers in a true sense, but who were indirectly perceived as such. The Kosovars even felt that they had to endure some kind of apartheid regime after the autonomy granted to them in 1974 had been largely abolished by the Milosevic regime in 1989.[11]There was a profound urging by the people in the republics and provinces of the SFRY to become truly independent, to take matters into their own hands, to conduct policies on their own without being under the guardianship and control of another nation. This is fully understandable. To be the master at home in your own country corresponds to a deep longing of every people, and of course State sovereignty constitutes the best tool to realize that dream. A sovereign nation can do whatever it sees fit to do. It is certainly restrained by the general rules of international law but generally, in particular in respect of its domestic policies, it can shape its policies according to its own value preferences.It has been a dream of all ethnic groups across the globe to rule their own affairs under the protection of sovereign statehood. In the 19th century, this dream came true for Italy and Germany. Anywhere peoples wanted to become sovereign nations like France and Great Britain: united, strong and prosperous. Under the United Nations Charter the ideal of the nation-State obtained further support from the principle of self-determination which sees a “people” - and not an idea or other common concept - as the core element of every State. UN General Assembly Resolution 1514 (XV) of 14 December 1960 has given specific expression to that guiding principle by proclaiming that “all peoples have the right to self-determination”.
IV.The New Boundaries in Yugoslavia
It is therefore somewhat surprising that, notwithstanding the principle of self-determination, the dismemberment of the SFRY did not bring about a complete redesign of the map according to ethnic criteria, except for Slovenia where the boundaries as they had been drawn in the SFRY corresponded almost perfectly to the ethnic distribution of the population. In Croatia and in Bosnia-Herzegovina, by contrast, a large percentage of the population had another ethnic background than the dominant group. But this factual situation did not lead to abandoning the boundaries inherited from the SFRY. The Badinter Commission,[12] established by the European Community with the mandate to help the new political forces in their endeavours to find a satisfactory solution to the problems of succession, proceeded from the assumption that international law provided a ready-made rule, namely the proposition: uti possidetis.[13]Uti possidetis, developed in Latin America in the early 19th century at the moment of the disintegration of the Spanish colonial Empire, means that the existing internal boundary lines are automatically converted into definitive international boundary lines. The International Court of Justice has applied uti possidetis also for border disputes in Africa, without demonstrating persuasively that it provides satisfactory recipes for settling any succession problems.[14]
In fact, serious doubts exist as to whether uti possidetis has really acquired the quality of universal customary law. Taking up an example from the succession in the SFRY: Croats and Serbs living in the Republic of Bosnia and Herzegovinawere originally placed under the supreme authority of the Federation. They could hence trust that their legitimate interests would at all times be duly taken into account, if need be by the Federal Government. To be relegated to the status of a minority in an independent State mainly inhabited by Muslim Bosniaks is quite a different matter, a qualitative change of status. Nonetheless, the Badinter Commission, which paved the way for the Dayton Peace Agreement DPA), opted for the uti possidetis formula, probably for political reasons which cannot be rejected as illegitimate from the very outset. At the time when the Commission delivered its opinions, fighting had already flared up. Redesigning the map of Yugoslaviawould have required a huge and almost futile effort. Since in many regions the different ethnic communities lived side by side, it would have been necessary to scrutinize the territorial classification village by village, and no viable answers could have been given in cases of truly mixed communes.[15] The method chosen was, accordingly, not just“une solution de facilité”, but a serious effort to secure peaceful relations among the different groups. The Commission successfully averted the danger of stirring up fighting with a view to enforcing a specific territorial assignment of the localities in borderline areas.[16] The same considerations prevailed during the negotiations at the Dayton air base which eventually made the determinations with which we are still confronted today.
V.The Need for Overarching Structures
1) General Considerations
Carving up the territory of the SFRY and accepting at the same time the destruction of any overarching structures led inevitably to outright negative consequences. Strict departmentalization carries with it many disadvantages. According to traditional concepts, the power of a State is confined to the territory within its borders, and many rights are granted only to citizens. This is self-evident with regard to truly political rights, in particular the right to vote and to hold office in State institutions. But alsofreedom of movement exists only within the territory of the State of which the person concerned is a national. Foreigners can of course be admitted, but they are normally subject to strict regulations about immigration, about sojourn and freedom to engage in employment. Likewise, trade, financial operations and freedom to provide services may be curtailed in many – and sometimes highly sophisticated – ways. No State can on its own initiative extend such rights and freedoms beyond its borders. Consensual solutions must be sought to secure intercourse beyond borders. The inconvenience of fragmentation is felt all the more strongly the smaller the mosaic of new States is. In countries like Macedonia or Kosovo no profitable industries can be established if no opportunities of producing for larger markets exist. In Kosovo, the local markets are tiny since the number of inhabitants is low– notwithstanding a steady tendency to the rise - and since the available incomes are modest, sometimes inexistent. Thus, just for economic reasons the concept of a closed commercial State in the sense advocated by Johann GottliebFichte[17] proves frankly absurd under such circumstances. In the world economy of today, production of scale is a necessity for survival. Bread may be baked even in the smallest community. But any product of a slightly higher level of technical refinement requires open borders and contacts with buyers in a wider area of demand.
There is no need to dwell at length on these trivial facts of life. Everyone also knows that they led the Western European nations in the early fifties of the last century to join together, initiating the European integration process which has by now reached its culmination point in the European Union of 27 members. The Union has found, as it appears, a trick, a panacea in pooling the economic forces of its members without compelling them to abandon their sovereignty. Indeed, the Union, although it has “citizens” who enjoy the right of freedom of movement in its entire territory, has not become a State, it still remains in the status of a highly developed international organization, for which the German Constitutional Court coined the term of art “Staatenverbund”.[18]The integration process has even gone so far as to stir up fears that national sovereignty might lose its substance, becoming a hollow concept without any real meaning. It was therefore necessary to stipulate in the Treaty on European Union that the national identity of the member States had to be respected by the Union (Article 4). Indeed, a delicate balance has been reached where every little step ahead might entail an incurable preponderance of the centripetal forces. The German Constitutional Courthas even sought to demarcate the outer limits of the integration process by identifying certain areas which must, at all cost, remain under national jurisdiction.[19]This static approach has not met with a great deal of approval. But the development in the European Union shows that a dialectic balance can be found, that seemingly irreconcilable elements are susceptible of being reconciled. On the one hand, the European Union is founded on strong independent polities, its member States, who have not foregone their sovereignty and still remain masters at home. On the other hand, almost all of the subject-matters where joint and co-ordinated action in a transnational perspective is necessary have been transferred to the Union level where all the members participate in the decision-making process on a basis of parity, of course to some extent adjusted to demographical factors in the Council and in the European Parliament where account has to be taken of the basic democratic requirement of: one man, one vote.
2) Joining the European Union
For the successor States of the former SFRY joining the EU might with one strike dispose of most of the problems they are currently experiencing (“EU-ization”). And they are all eager to take that step but, as everyone knows, only Slovenia has hitherto succeeded in reaching the coveted goal while Croatia is fairly close to the gate. Becoming a member of the EU is no capitis diminutio. If a State accepts exactly the same kind of legal restraints as countries like France or theUnited Kingdom, recognized sovereign States, itdoes not thereby abandon itsfull status under international law. EU member States do not become unfit for membership in the United Nations, the world organization of sovereign States. Joining the EU has the further advantage for any State that it becomesan equal partner in a community of in any event more than 27 States with no hegemonic aspirations on the part of any of them. Frequently, reference is made to the axis Paris-Berlin but this axis has no institutional configuration and is largely counterbalanced by the smaller members. Its only political function is to ensure the advancement of the integration process. Accordingly, whoever sits under the protective umbrella of the EU needs not fear that his statehood might be negatively affected. Additionally, by being able to take an active part in all of the activities of the EU, a State can exert a determinative influence on the policies of its neighbours, something it could never obtain by following traditional diplomatic channels. Would anyone listen to the voice of Luxembourg were it not for its status of a member of the European Union? Will one day Kosovo enjoy the same political weight?