Le Norme Internazionali sull'Integrità Territoriale e la guerra dei balcani nel 1990

Global Society, Vol. 16, No. 2, 2002

International Norms of Territorial Integrity and the Balkan Wars of the 1990s1

MIKULAS FABRY

This essay investigates the role of the post-1945 norms, rules and practices pertaining to state recognition of territorial claims in the bloodiest series of con¯ icts in post-1945 Europe, the Balkan wars of the last decade. These moral and legal normsÐ Robert Jackson and Mark Zacher evocatively call them ``the territorial covenant’’,2 and Zacher, more recently, ``the territorial integrity norm3Ð stipulate that territorial change attained through the use of military force cannot be accepted by the society of states as valid. They outlaw ``the acquiring of the right of sovereignty by victory’’, as Thomas Hobbes de® ned conquest in Leviathan,4 and permit only territorial modi® cations attained by way of consent of all parties involved. The same applies to non-sovereign jurisdictions that become sovereign: unless their governments decide otherwise, their former administrative borders must remain intact. I suggest that territorial norms had a signi® cant presence in external attitudes towards the Yugoslav wars and their possible settlements and that the actual international decisions with respect to the Balkans were by and large consistent with these norms.

There are two types of territorial norms: (1) those concerning the right to statehood (territorial constitutive norms) and (2) those relating to alteration of state frontiers (territorial regulative norms). Territorial constitutive norms lay down how a state may come into being or cease to exist, what entity can be a legitimate claimant of sovereign statehood, and in what borders can a new state be recognised as sovereign. Territorial regulative norms spell out modus operandi for changing title to a particular territorial segment between already established states. In Croatia and Bosnia-Herzegovina both types of norms were relevant, in Kosovo only the former.

1. An earlier version of this paper was presented at the ISA Annual Convention held on 20± 24 February 2001 in Chicago. For their comments on previous drafts I thank Amir Abedi, William Bain, Jordana Heaton, Kal Holsti, Robert Jackson, Alan James, Brian Job, Jean Laponce, Mark Zacher, Nives Zupanec and two anonymous reviewers. I also gratefully acknowledge support of the Social Sciences and Humanities Research Council of Canada, the Killam Trust and Sibyl von der Schulenburg.

2. Robert Jackson and Mark Zacher, ``The Territorial Covenant: International Society and the Stabilization of Boundaries’’, Working Paper No. 15, Institute of International Relations, Vancouve r (1997).

3. Mark Zacher, ``The Territorial Integrity Norm: International Boundaries and the Use of Force’’, International Organization, Vol. 55, No. 2 (2001), pp. 215± 250.

4. Thomas Hobbes, Leviathan, J.C.A. Gaskin (ed.) (Oxford: Oxford University Press, 1996), pp. 469± 470.

ISSN 1360-082 6 print/ISSN 1469-798 X online/02/020145-30 Ó 2002 University of Kent at Canterbury DOI: 10.1080/0953732022013290 1

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In Croatia and Bosnia5, the territorial covenant meant that the Serbian drive forcibly to change the borders of these republics and the Croatian effort to attach parts of the Herzegovina region to Croatia had been from the very outset repudiated internationally. Whereas Western states and international organisations displayed plenty of expediency, inconsistency and wavering towards the Balkans, this position remained principled and consistent throughout the wars in the two republics. Yet one would be hard pressed to ® nd any sustained inquiry into the insistence on Croatian and Bosnian territorial integrity in the vast literature on the two con¯ icts. If the policy is acknowledged, the tendency is to dismiss it casually as misguided, especially in regards to Bosnia,6 to remain ambivalent,7 or, much more frequently, to take for granted that it was right. Whatever their view, scholars typically concentrate on the means that were used or could have been used to bring peace to south-eastern Europe. They have re¯ ected less on the normative foundations of that peace. This is also true of some direct participants in the events.8 Such a re¯ ection, however, is much needed. The business of foreign policy makers is to make judgements on whether an intended course of action is in the interest of their country; whether it is prudent, timely, affordable, credible, ef® cient, viable or effective. But they do not make these assessments without, or in isolation from, considerations of international morality and law. Even wars over territory, historically among the most serious kinds of con¯ ict, take place within a framework of norms that both shape and constrain political choices.

Those making decisions in regards to the Yugoslav wars confronted the fact that, unlike the period before 1945, forcible territorial acquisition had been generally inadmissible. If one’s aspiration is comprehensive understanding of international politics, then various moral and legal facets of those relations must also be carefully probed. They should be neither easily written off nor assumed as unproblematic givens. As several theorists of international relations have noted,9 5. The term ``Bosnia’’, as it appears throughout this essay, is meant as a convenient synonym of the ``Republic of Bosnia and Herzegovina’’ , not as a reference to the historic region of Bosnia. That region is only a part of the republic’s territory.

6. See, for instance, John Mearsheimer and Robert Pape, ``The Answer: A Partition Plan for Bosnia’’, The New Republic (14 June 1993), pp. 22± 28; and John Mearsheimer and Stephen Van Evera, ``When Peace Means War’’, The New Republic (18 December 1995), pp. 16± 21.

7. For examples see Susan Woodward, Balkan Tragedy: Chaos and Dissolution after the Cold War (Washington, DC: The Brookings Institution, 1995); Susan Woodward, ``Redrawing Borders in a Period of Systemic Transition’’ , in Milton Esman and Shibley Telhami (eds.), International Organizations and Ethnic Con¯ ict (Ithaca, NY: Cornell University Press, 1995); Steven Burg, ``The International Community and the Yugoslav Crisis’’, in Milton Esman and Shibley Telhami (eds.), International Organizations and Ethnic Con¯ ict (Ithaca, NY: Cornell University Press, 1995); and James Steinberg, ``International Involvement in the Yugoslavia Con¯ ict’’ , in Lori Damrosch (ed.), Enforcing Restraint: Collective Intervention in Internal Con¯ icts (New York: Council on Foreign Relations, 1993).

8. See, for instance, Richard Holbrooke, To End a War, revised edn (New York: The Modern Library, 1999); and John Major, The Autobiography (London: HarperCollins, 1999), pp. 532 ± 549.

9. The list would include ``Preface’’, in Herbert Butter® eld and Martin Wight (eds.), Diplomatic Investigations: Essays in the Theory of International Politics (London: Allen & Unwin, 1966); Robert Jackson, ``The Political Theory of International Society’’, in Ken Booth and Steve Smith (eds.), International Relations Theory Today (University Park, PA: The Pennsylvania State University Press, 1995); ``Part I: Introduction’’, in Kai Alderson and Andrew Hurrell (eds.), Hedley Bull on International Society (London: Macmillan, 2000); and Christian Reus-Smit, ``The Strange Death of Liberal International Theory’’, European Journal of International Law, Vol. 12, No. 3 (2001), pp. 573± 593.

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in practice instrumental and normative considerations go hand in hand and neither can be studied or interpreted exclusively on its own.

International territorial norms were upheld in Croatia and Bosnia even though they were not necessarily followed by peace in the Balkans. In fact, the manner in which external actors drew on them did, certainly in the short run, more harm than good. The decisions to recognise the two republics in their previous republican bordersÐ coming when they didÐ made the underlying reasons for hostilities in Croatia more dif® cult to address and a war in Bosnia much more likely to erupt. Yet after Croatia and Bosnia-Herzegovina had been recognised as sovereign, international society did not allow their forcible partition. The insistence on territorial norms was maintained even though their infringement might have brought at least short-term termination of violence or, in the case of Bosnia, perhaps even prevention of its further escalation. The Bosnian Muslims, because of their relatively modest military capability, could not have easily challenged an early reversal on the recognition of Bosnia by way of international endorsement of Serbian and Croatian territorial gains.

In Kosovo there were no attempts to change the province’s status without acquiescence of the Federal Republic of Yugoslavia (FRY), despite the fact that the North Atlantic Treaty Organisation (Nato) intervened militarily in Serbia and Montenegro to stop what it had regarded as intolerable mistreatment of the Kosovo Albanians. Whereas most members of the Contact Group10 in Rambouillet wanted Yugoslav commitment that the provinces’ ® nal status would be negotiable in three years’ time, once the Belgrade government refused, the matter was not further pressed. UN Security Council (UN SC) resolutions both prior to and following the intervention stress that Kosovo is an integral part of the FRY. Yugoslavia’s sovereignty over the province has been trivialised routinely as a ``technicality’’, but the stated purpose of the interim UN administration is to make Kosovo effectively autonomous within the FRY. This paper begins with a short examination of the intra-Yugoslav tensions of the late 1980s. It pays special attention to the collision involved in the secessionist drive of Croatia and Bosnia. It next moves to a brief discussion of the post-1945 international territorial norms. The third part of the essay concentrates on their role in the violent events of 1991± 1995. The subsequent section looks at the territorial question before, during and after the Nato operation against the FRY in 1999. The conclusion summarises the ® ndings of the paper and offers additional thoughts on the role of territorial norms in the Balkans.

The Character of the Yugoslav Con¯ ict The resort to armed force in Yugoslavia was the culmination of a deep political crisis that the federation plunged into during the second half of the 1980s. The turmoil came about as a result of the vigorous attempt by Serbia to recentralise the country and to replace the 1974 federal constitution with a new basic law that would give the ethnic SerbsÐ wherever in Yugoslavia they might have livedÐ more say in the affairs of the state. Serbia’s assertiveness was sparked by events 10. The Contact Group on the Former Yugoslavia, an informal co-ordinating group of ® ve countries (the United States, Russia, Britain, France and Germany), was formed in May 1994. Initially, it sought to formulate new peace initiative s for Bosnia. The Group was later joined by Italy.

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in its autonomous province of Kosovo. The 1987 disturbances there, in which the local Serbs complained of brutal treatment by the ethnic Albanians in the provincial police, symbolised for Serbia everything that was wrong with Tito’s Yugoslavia. Serbs had always disliked the intra-Yugoslav boundaries drawn in 1945. They felt indignant that while Serbia had been coerced to give autonomy to Kosovo, dominated by ethnic Albanians, and to Vojvodina, inhabited by a sizeable ethnicHungarian population but also a Serb majority, Tito had never demanded the same measure of Croatia with respect to its large Serb population. While Serbs had accepted the internal borders as long as they, the largest people in the federation, resided in a reasonably centralised state, these attitudes began to change after Tito’s death in 1980. The extreme decentralisation of the 1974 constitution, it was maintained, meant that Serbs in Serbia’s own autonomous provinces and other republics lived in virtually different countries and were in a number of cases discriminated against by authorities of those jurisdictions.

The government of President Slobodan Milosevic, backed by a large number of Serbs both inside and outside Serbia, was not willing to endure what it perceived as an inferior position of the Serbs vis-aÁ-vis other groups in Yugoslavia.

In early 1989 the Milosevic government pushed through the Kosovo and Vojvodina assemblies legislation that for all practical purposes abrogated the autonomous status of the two provinces. Serbia’ s leadership also proposed to the other republics constitutional changes that would strengthen the central government.

However, the republics, with the exception of Montenegro, were unwilling to transfer any of their authority to the federation and were alarmed by Serbia’ s coerced removal of Vojvodina’s and Kosovo’s autonomy.

Slovenia and Croatia were particularly vocal in their opposition to Serbia.

They argued that Yugoslavia was actually too centralised and should devolve even more for both economic and political reasons. Serbia refused to negotiate further devolution unless ``Tito’s’’ republican borders were redrawn so as to include all territory contiguously populated by ethnic Serbs in one federal unit, (i.e. in an expanded, greater Serbia). The response of the Slovenian and Croatian governments, elected in 1990 in the ® rst free republican elections, was to move towards separation from Yugoslavia by holding referenda on sovereignty in December 1990 and May 1991, respectively.

On 25 June 1991, both republics proclaimed their independence: their parliaments declared that the constitution of the Socialist Federal Republic of Yugoslavia (SFRY) was no longer in force on their territory. Slovenia and Croatia justi® ed their move by invoking their inherent right of self-determination, including the right to secession under the federal constitution.11 They proceeded despite the March 1990 ruling of the Yugoslav Constitutional Court that a unilateral declaration of independence by a republic was unlawful and unconstitutional.12 On the same day, the federal cabinet denounced the declarations as ``illegal and illegitimate’’ and asserted, ``all the effects of those acts are null and void’’.13 Two days later, the federal presidency stated that these ``anti-constitutional acts’’ 11. The reference to the right to secession appeared only in the preamble. The constitution failed to spell out any precise procedure for realising it.

12. Robert Hayden, Blueprints for a House Divided: The Constitutional Logic of Yugoslav Con¯ icts (Ann Arbor, MI: University of Michigan Press, 1999), pp. 45± 46.

13. ``Statement by the Federal Executive Council’’, Review of International Affairs, Vol. 42, No. 989 (20 June 1991), p. 25.

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directly threaten ``the territorial integrity of Yugoslavia’’ and ``the country’s state frontiers’’.14 Nevertheless, the actions of Slovenia and Croatia were followed by Macedonian (17 September 1991) and Bosnian (14 October 1991) declarations of sovereignty. Macedonia and Bosnia were at ® rst reluctant to secede, but their governments altered their positions after it became quite apparent that the two north-western republics were not going to reverse their decision to leave the federation. They had no desire to remain in a Serb-dominated Yugoslavia.

Serbia did not object to these republics’ secession per se nor did it dispute the right of Slovenes, Croats, Macedonians or Bosnian Muslims to self-determination, but it most strenuously took issue with the unilateral character of these secessions. In Serbia’s view this violated Article 5 of the 1974 constitution prohibiting a change of the external SFRY boundaries without the consent of all republics and autonomous provinces (this was also the position of the federal government), and, even more emphatically, with the departure of Croatia and BosniaHerzegovina with their borders intact.15 As with the arguments of the four republics, the Serb counter-arguments were based on the right of self-determination. The government of Serbia and later the government of the diminished Yugoslavia (Serbia and Montenegro) argued that, according to the federal constitution, republican borders were administrative rather than political and that the right to self-determination belonged to the constituent ethnonations of Yugoslavia, not to their territorial republics.16 Croatian Serbs and Bosnian Serbs were, in the view of Serbia and the political representatives of those Serbs, entitled to the right of self-determination as members of the constituent Serb nation. They could not be just taken against their will out of Yugoslavia, a 14. Snezana Trifunovska (ed.), Yugoslavia through Documents: From its Creation to its Dissolution (Dordrecht: Martinus Nijhoff, 1994) , p. 305.

15. It is crucial to note that neither Slovenia nor Macedonia had any substantial Serb population (Slovenia is almost completely ethnically Slovene) and that both republics left the federation without a war. Macedonia’s independence elicited, curiously, more objections from Greece than from Belgrade.

Eight days of ® ghting ensued in Slovenia when the Slovenian Territorial Force took over the border posts and blockaded the garrisons of the federal army. However, the order to use force did not come from Serbia’s President Milosevic, as is commonly thought, but from the federal cabinet, led by Croat Ante Markovic, which acted on the instruction of the federal parliament to ``undertake measures to prevent the division of Yugoslavia and changes in its borders’’. See Ben Bagwell, ``Yugoslavian Constitutional Questions: Self-determination and Secession of Member Republics’’ , Georgia Journal of International and Comparative Law, Vol. 21, No. 3 (1991) , p. 491; Serbia had no serious objection to Slovenia’s withdrawal from the SFRY. See Woodward, Balkan Tragedy, op. cit., p. 206; and Laura Silber and Alan Little, The Death of Yugoslavia, revised edn (London: Penguin, 1996), pp. 161± 165.

16. There were six ``constituent nations’’ in Yugoslavia according to the 1974 constitution: the Serbs, the Croats, the Montenegrins, the Bosnian Muslims, the Slovenes and the Macedonians. Their territorial units were the six republics: Serbia, Croatia, Montenegro, Bosnia-Herzegovina, Slovenia and Macedonia. The constitution speci® ed in the preamble that the country was formed by ``the nations of Yugoslavia, proceeding from the right of every nation to self-determination, including the right to secession’’ and in Article 1 that Yugoslavia was a community of ``voluntarily united nations and their Socialist Republics’’ . In addition, the 1974 republican constitutions of Croatia and BosniaHerzegovina categorized their Serb, and Croat and Serb populations, respectively, as having constituent-nation status in those federal units. The support for the territorial-republican as opposed to ethnonational interpretation of the right of self-determination could be found in Articles 2 and 3 which characterize the republics as ``states’’ and Article 5 which postulates that ``the territory of the Socialist Federal Republic of Yugoslavia is a single uni® ed whole and consists of the territories of the Socialist Republics’’ . According to Article 5, the borders between republics could be altered only by agreement between the republics concerned. See Trifunovska, op. cit., pp. 224± 226.

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country to which they remained intensely loyal, or be cut off from their Serb kin and relegated to the status of ethnic minority in the states they had never wished to be part of in the ® rst place.17 The Serb leadership in Croatia organised a plebiscite on autonomy as early as 19 August 1990. Although the Croatian government denounced the exercise as illegal, the Croatian Serbs proceeded to proclaim a ``Serbian Autonomous District of Krajina’’ on 30 September. On 18 March 1991 the self-appointed ``Executive Council of Krajina’’ announced that the region ``disassociates’’ itself from Croatia and becomes a constituent part of the Yugoslav federation.18 Most Croatian Serbs boycotted the republican referendum on independence and instead voted in the 12 May counter-referendum, again unauthorised by the Zagreb government, on remaining in Yugoslavia. After its positive result, the leadership of Croatian Serbs con® rmed Krajina’ s ``union’’ with Serbia. A full-scale war in Croatia began the moment when the Krajina Serb paramilitaries and the federal Yugoslav People’s Army ( JNA), by now devoid of Slovenian and Croatian soldiers, began to resist the Croatian forces in order to prevent the incorporation of Serbinhabited territories into an independent Croatia. This scenario then repeated itself a few months later in Bosnia: there the ® ght of secessionist Bosnian Serbs took place alongside the Bosnian Croat campaign to merge parts of Bosnia with Croatia. The Bosnian Croats also interpreted the right of self-determination in ethnonational terms. They were backed by Croatia and its nascent armed forces, even though the Zagreb government denied this very demand to its Serbian population and insisted on the inviolability of Croatia’s borders.

The argument thus far has been that the dispute in Yugoslavia was fundamentally about who has the right to govern whom, where and in what form. The war broke out as a result of con¯ icting secessionist and irredentist claims of its largest peoples. Yet in the society of states there can be no permanent and legitimate territorial change without an international acknowledgment.19 This is because, as Jackson writes, ``Boundaries are . . . international and not merely national.

They mark the limits of the territorial jurisdictions and the domestic society of 17. The political climate in Croatia was made worse by the fact that in mid-1990 the new Croatian authorities followed Serbia’s politics of brinkmanship. Once the Croatian Democratic Community (HDZ), led by President Tudjman, won the May elections, it did not pay much attention to the acute political sensibilities of Croatian Serbs, even if those were in no small measure whipped up by Serbia’s authorities and its media. The HDZ administration quickly and without any consultation adopted the ¯ ag under which thousands of Croatian Serbs were massacred during the Ustasha reign of 1941± 1945. Before the referendum on sovereignty in May 1991, the government media trumpeted slogans like ``Croatia for Croatians only’’. See John Lampe, Yugoslavia as History: Twice there was a Country (Cambridge: Cambridge University Press, 1996), p. 352; As in 1967 ± 1971, the Croatian Serb demands of political autonomy were dismissed. The new December 1990 constitution in fact demoted Serbs from being a constituent nation, and thus legally equal to the Croatian nation in the old socialist Croatian constitution, to one of eight minoritiesÐ some of them ( Jews, Slovaks, Czechs) being minuscule in comparison. The government either ® red many Serbs from the republican police or took away their arms, and moved to establish a paralle l ethnically Croat militia. Susan Woodward’s argument that ``discrimination against Serbs throughout the republic in jobs, schools, and citizenship rights led them to believe they would never be secure as Serbs in Croatia’’ appears to be true. See Woodward, Balkan Tragedy, op. cit., p. 390.

18. Peter Radan, ``The Secession of the Republic of Serbian Krajina’’ , South Slav Journal, Vol. 16, No. 1± 2 (1995), p. 16.

19. Michael Akehurst, A Modern Introduction to International Law, 6th edn (London: Routledge, 1992), p. 152.

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sovereign states; but they also constitute an institution shared by states and form an important part of an international society between states.’’ 20 Something comparable can be said of a territory’s acquisition of sovereign status, for sovereignty, too, pertains simultaneously to the state and the society of states.

Though the impulse to achieve sovereignty ordinarily comes from within a political communityÐ by virtue of declaration of its constitutional separatenessÐ a state cannot be said to be sovereign exclusively in terms of its own constitution.

In addition to the internal aspect of sovereignty established by domestic constitutional law, there is an external aspect delineated by public international law. The nexus linking the two is state recognition.

Sovereignty in international lawÐ and there is no way to be sovereign outside of that law given that sovereignty is an international and not just national institutionÐ is realised when the already existing sovereign states acknowledge a claimant to have sovereign rights and duties and, as such, to be a subject of international law.21 The common practice of using quotation marks differentiates those who merely self-proclaim to be sovereign from those who are actually sovereign in the eyes of international law. Since Croatia and Bosnia ultimately became sovereign in terms of international law and their territories were not allowed to diminish as a result of secessions or outside territorial acquisitions, it is indispensable to investigate the role of outside states and relevant intergovernmental organisations. It is above all crucial to assess if they were guided by anything other than their momentary whims and interests when they recognised certain claims and denied others.

The Global Territorial Covenant The beginnings of the post-1945 territorial integrity norm may be traced to the prevalent opinion in some Allied countries in the immediate aftermath of World 20. Robert Jackson, ``Boundaries and International Society’’, in B.A. Roberson (ed.), International Society and the Development of International Relations Theory (London: Pinter, 1998), p. 159.

21. Alan James, the author of seminal work on sovereign statehood, disputes this claim. He argues that ``recognition presupposes a state’s existence; it does not create it . . . State sovereignty is a factual matter . . . it cannot, once obtained, be affected by anything which is said by outsiders.’’ See Alan James, Sovereign Statehood: Basis of International Society (London: Allen & Unwin, 1986), pp. 147, 152± 153. In James’ view, state sovereignty is nothing more than a matter of a state’s constitutional law.

A state regards itself, and therefore is, sovereign from the moment it proclaims constitutional independence. Other states can acknowledge this fact but they cannot change it. One dif® culty with this argument arises when there is a competing claim of sovereignty over the same territory. Which one is, then, the relevant fact? Slovenia and Croatia asserted their independence, but outside states and intergovernmental organisations kept acknowledging the constitutional superiority of the SFRY and the two republics continued to be, in the eyes of international law, parts of that country. James argues that if two claims are made in respect of the same territory, the claimant who exercises effective control over the territory is the sovereign authority. Nonetheless, in the Balkans outsiders did not deem sovereign authorities to be, where there had been contesting claims, those who might have exercised effective control, but those who they had recognized as sovereign authorities. There is in that respect hardly a better example than Bosnia. Facing competing claims following the parliamentary declaration of sovereignty, the Sarajevo government failed to establish effective rule over most of its territory. By late June 1992 it directly controlled perhaps 11% of Bosnia. If Bosnia had become sovereign in terms of international law by May 1992, this could not have been just on the basis of its domestic constitutional law and even less on the basis of effective control. It could be only because of international recognition.

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War I that the use of force in the service of territorial enlargement is unacceptable and that territorial modi® cations can be made only with the consent of all parties involved. The League of Nations sanctioned the territorial status quo as a criterion of international legality and legitimacy in Article 10 of its covenant, and the Kellog± Briand Pact (1928), the Stimson Doctrine (1931), Article 11 of the Montevideo Convention on the Rights and Duties of States (1933) and Article 2 of the Rio de Janeiro Anti-War Treaty of Non-Aggression and Conciliation (1933) were also inspired by this idea.22 The illegitimacy of conquest, however, hardly took root during the 1930s as not only the former central powers, but also several former allied states (notably Italy and Japan) rejected it in practice.

The settlement of World War II moved the world closer to the hopes of those who 20 years earlier had pleaded that wars of territorial conquest be made unlawful. With the major exceptions of the USSR, Poland and Finland, international borders in Europe after 1945 re¯ ected those of the post-World War I settlement. The inadmissibility of territorial change by force became entrenched in numerous international documents, the most important of which have been the UN Charter (1945), the Bogota Charter of the Organization of American States (1948), the Organisation of African Unity Charter (1963), UN General Assembly Resolution 2625 (XXV) on Principles of International Law Concerning Friendly Relations and Cooperation among States (1970), UN General Assembly Resolution 3314 (XXIX) on De® nition of Aggression (1974), and, speci® cally in the European context, the Final Act of the Conference for Security and Cooperation in Europe (1975) and the Charter of Paris for a New Europe (1990). The 1970 resolution, for example, states that it is a basic principle of international law that ``the territory of a State shall not be the object of acquisition by another state resulting from the threat or use of force’’ and posits that ``no territorial acquisition resulting from the threat or use of force shall be recognized as legal’’.23 The 1974 resolution cautions, in a slightly different vocabulary, that ``no territorial acquisition . . . from aggression is or shall be recognized as lawful’’ . The Helsinki Final Act speci® es, ``frontiers can [only] be changed, in accordance with international law, by peaceful means and agreement’’.24 That external frontiers are protected by international law is also a premise of the Vienna Convention on the Succession of States in Respect of Treaties (1978).

The constitutive aspects of the territorial covenant can be traced back to 1945.

Wartime states such as Croatia, Slovakia or Manchakuo, which emerged in the wake of aggression against sovereign states of Yugoslavia, Czechoslovakia and 22. Surya Sharma, Territorial Acquisition, Disputes and International Law (The Hague: Martinus Nijhoff, 1997), pp. 149 ± 150.

23. Resolution 2625 also af® rms that, unless other UN Charter rules apply, ``every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States’’.

24. Other relevant sections of the Helsinki Final Act read: ``The participatin g States regard as inviolable all one another’s frontiers as well as the frontiers of all States in Europe and therefore they will refrain now and in the future from assaulting these frontiers. Accordingly, they will also refrain from any demand for, or act of, seizure and usurpation of part or all of the territory of any participating State . . . The participating States will likewise refrain from making each other’s territory the object of military occupation or other direct or indirect measures of force in contravention of international law, or the object of acquisition by means of such measures or the threat of them. No such occupation or acquisition will be recognized as legal.’’

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China were, for example, denied their continued existence. More importantly for the post-war development colonial territories, which gradually came to be regarded as possessing the right of self-determination, could become sovereign only in their colonial boundaries. This norm, called uti possidetis juris (``keep what you have’’), prescribes that former administrative borders are, in the absence of voluntary agreement by a new sovereign government to do otherwise, inviolable.

The growing reliance on uti possidetis, originally a principle of Roman property law and as a rule of international law ® rst used in 19th-century Latin America, seems to have been propelled by two beliefs. One of them was that in case of disputes the existing colonial boundaries provided the only basis for preventing total social disintegration and maintaining regional and international order.25 It was desirable to have stable states. By restricting the number of peoples entitled to self-determination, the society of states was to prevent the prospect of multiple partitions of countries into smaller and smaller units and guarantee that international law did not become ``a suicide club for states’’.26 The second was a normative shift from the belief that ethnonational self-determination may be in certain conditions optimal, evident in the 1919 settlement with respect to Central and Eastern Europe, to the conviction that multiethnic states are the best arrangement under all circumstances. This moral transformation has not been suf® ciently appreciated by students of world politics. Despite the Cold War and the very sharp ideological divisions among states, virtually all countries extolled virtues of multiethnic society and civic nationhood. The insistence on political exclusivity of ethnonations was regarded as a recipe for catastrophe and a direct cause of World War II. Jackson and Zacher summarise the post-1945 territorial constitutive and regulative norms as follows: (1) only existing international boundaries are legal and legitimate; (2) borders can be changed only with the explicit consent of all states affected by the change; (3) change of borders by way of armed force is illegal and illegitimate; (4) the only recognised political community for international purposes is the state with its juridical boundaries; and (5) colonialism is illegal and illegitimate.27 The authors note that there is one more norm that does not have ``the strength of those noted above, but does deserve mentioning:’’ (6) secessions are to be dissuaded by members of international society, but if they appear inescapable, international society should insist that the international borders of a new state re¯ ect the internal administrative boundaries of the state from which they seceded.28 25. Malcolm Shaw, ``The Heritage of States: The Principle of Uti Possidetis Juris Today’’ , British Year Book of International Law 1996 (Oxford: Clarendon Press, 1997) , p. 111.

26. Martin Rady, ``Self-determination and the Dissolution of Yugoslavia’’ , Ethnic and Racial Studies, Vol. 19, No. 2 (1996) , pp. 379± 389.

27. Jackson and Zacher, op. cit., p. 10.

28. Jackson and Zacher note that territorial norms have been very effective despite the fact that the number of states nearly quadrupled after 1945. They list eight cases of what they call successful territorial revisionism and, interestingly, none of them belong to the post-Cold War era. The cases are India and Pakistan (1948), India and PortugalÐ Goa (1961), China and India (1962), North and South Vietnam (1975), China and South VietnamÐ Paracells (1974), Indonesia and PortugalÐ East Timor (1975), Israel± Arab Palestine (1948) and Israel± Arab states (1967). It is essential to stress, though, that these territorial acquisitions were with the exception of Goa and the Vietnams (which were not sovereign to begin with) never recognized internationally and that the new borders have

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While this is an elegant synopsis of territorial norms, the norm against secession is more robust than Jackson and Zacher would allow. There has been only one instance of widespread recognition of a seceding entity without the approval of its government, that of Bangladesh from Pakistan in the early 1970s.29 The end of the Cold War has not changed the norm. Self-determination has not been reinterpreted to sanction recognition of unilateral secession in some instances. The Charter of Paris reaf® rmed the right of peoples to self-determination but it stressed, as did General Assembly Resolution 2625 and other UN texts, that the realisation of the right must be ``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’’. It is true that new countries emerged out of the former Soviet Union and Czechoslovakia, but their break-up was an instance of state dissolution, not secession.30 The disintegration of Yugoslavia, as the next section shows, was treated by international society in the same way. Conceptually, the distinction between secession and dissolution may sometimes be murky because dissolution of the original state and its central government can begin as a unilateral secession by one or more of its parts.

However, state practice does distinguish between an attempt at secession and a successful secession: the latter is achieved only when a seceding entity is recognised internationally without the consent of its legitimate sovereign government.

The Territorial Covenant and the Wars in Croatia and Bosnia-Herzegovin a How was the territorial covenant, then, relevant in the Balkan wars of the ® rst half of the 1990s? From the moment of the ® rst salvo in Croatia in July 1991 Footnote 28 continued

not acquired status of permanent international boundaries. The same goes for the Turkish invasion of Cyprus, characterize d by Zacher as ``the one territorial aggression in Europe that has succeeded’’ .

See Jackson and Zacher, op. cit., p. 25; and Zacher, op. cit., p. 228; on the other hand, missing from the list is the important case of Bangladesh (1971), though Jackson and Zacher mention it elsewhere in their article. Curiously, in mid-1997 the authors predicted that ``it is unlikely now that East Timor, which is surrounded by Indonesian territory and territorial seas, will ever gain independence’’. Yet only two years later international pressure forced Indonesia to let East Timor go and the former colony is scheduled to become independent in 2002.

29. James Crawford, ``State Practice and International Law in Relation to Secession’’, British Year Book of International Law 1998 (Oxford: Clarendon Press), pp. 114± 115.

30. Both Czechoslovakia and the USSR dissolved constitutionally. The dissolutions were preceded by the agreement of their constituent republics to go their separate ways. When the Russian population of Moldova, the Abchaz and Ossetian peoples of Georgia and the Armenians of NagornoKarabach in Azerbaijan declared they did not want to be part of the newly sovereign states, their separatist or irredentist attempts were condemned internationally. The claims of sovereignty of the ``Trans-Dnester Republic’’ , the ``Abchaz Republic’’ and the ``Republic of South Ossetia’’ were not recognized. On the other hand, international society endorsed the independence of the three Baltic republics four months before the dissolution of the USSR and before the formal assent of the Soviet government on 6 September 1991. Most Western countries never formally accepted their forcible incorporation into the USSR in 1940. In late August 1991 the European Community (EC), the United States and other states welcomed the ``restoration’’ of their sovereignty. The United Nations also spoke, for example in General Assembly Resolution 47/21 (25 November 1992), of ``particular satisfactio n that independence was restored in Estonia, Latvia and Lithuania’’. The Baltic republics were neither treated as new states in need of recognition nor were they deemed to be successor states to the USSR.

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until the signing of the Dayton Peace Agreement in November 1995, international society steadfastly insisted that borders between the federal republics and then sovereign states not be allowed to change by force. As for the constitutive aspect of the Yugoslav disintegration, the separating republics were initially treated by outside actors as integral parts of Yugoslavia and their acts were described as attempts to secede. However, as Macedonia and Bosnia joined Slovenia and Croatia in declaring their sovereignty and ceased to retain their of® cials in agencies of the federal government, the SFRY became regarded as a federation in the process of dissolution and its government was no longer treated as legitimate. Though this was a novelty in the practice of state recognition that may indicate evolution in the post-1945 territorial norms, at the same time it must be pointed out that the collapse of Yugoslavia was itself without a precedent. Never before had a majority of constituent units, comprising the majority of the population and territory, attempted to secede from a federal state. It is extremely signi® cant that with the exception of Serbia and Montenegro no states protested against portraying the Yugoslav break-up as a case of dissolution and that the claims of these two republics that they represented a legal continuation of the SFRY had been uniformly rebuffed. Only with their federation dissolving did the republics become eligible for recognition. Because Croatia and Bosnia did not give consent to loss of parts of their territory, their borders assumed the character of international ones. They became, as a matter of international legal right, safeguarded against secessions and external territorial designs.

International society opposed independence of Slovenia and Croatia when these republics announced their intention to declare it unilaterally. The 35member Council of Foreign Ministers of the Conference for Security and Cooperation in Europe (CSCE) adopted during its meeting on 19 June 1991 a ``Statement on the Situation in Yugoslavia’’ which expressed support for the territorial integrity of Yugoslavia. During his visit to Belgrade on 21 June, US Secretary of State James Baker made it clear that ``neither the US nor any other country will recognize unilateral secession’’ of Slovenia and Croatia.31 He did not deny that the Yugoslav republics had a right of self-determination. He insisted, rather, that ``self-determination cannot be unilateral and must be pursued by dialogue and peaceful means’’ and he reminded both republican and federal leaders of ``[a principle] of the Helsinki Conference’’ that ``borders must not be changed except by consent’’.32 The USSR and the European Community (EC) voiced identical sentiments; the European Community by way of a statement of its foreign ministers a mere two days before the declarations of 25 June 1991. 33 After his return from Belgrade, Baker suggested to President George Bush Sr that the United States should ``work with the Europeans to maintain a collective non-recognition policy against any republic that unilaterally declared independence’’. 34 After the ® ghting had begun, the European Community, with the blessing of 31. James Baker, III with Thomas DeFrank, The Politics of Diplomacy: Revolution, War and Peace 1989± 1992 (New York: G.P. Putnam’s Sons, 1995), p. 482.

32. Ibid., pp. 480, 482 ± 483.

33. Peter Radan, ``The Badinter Arbitration Commission and the Partition of Yugoslavia’’, Nationalities Papers, Vol. 25, No. 3 (1997), p. 543.

34. Baker, op. cit., p. 483.

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the United States, the USSR, CSCE and the United Nations, immediately became involved. Though its activities helped terminate the armed confrontation in Slovenia, through the Brioni Accord of 7 July, the European Community’s efforts to mediate between, on the one hand, the government in Zagreb and, on the other, the Croatian Serb paramilitaries and the JNA proved futile. The ® rst negotiated cease® re broke down and the ® ghting progressively intensi® ed.

The Brussels Declaration of 27 August 1991 was the ® rst signi® cant EC statement on the mounting violence in Croatia. It censured the Serb irregulars for trying to solve problems of ``a new constitutional order through military means’’ and condemned the JNA’s active support of the Serbian side.35 For the purposes of this paper, though, the most notable are the following linesÐ they would, in one way or another, be later reproduced in most EC, UN, Nato, CSCE, Western European Union, Group of Seven, or Organisation of the Islamic Conference documents on the Balkan crises: [The Community and its member States] remind those responsible for the violence of their determination never to recognize changes of frontiers which have not been brought about by peaceful means and by agreement . . . The Community and its member States will never accept a policy of fait accompli. They are determined not to recognize changes of borders by force and will encourage others not to do so either.

Territorial conquests, not recognized by the international community, will never produce the kind of legitimate protection sought by all in the new Yugoslavia.36 The European Community took a leading role in the international effort to stop the war in Croatia. With the consent of all parties it convened a permanent conference on Yugoslavia, headed by Lord Peter Carrington. The forum was to help mediate a settlement of the con¯ ict and, more broadly, assist in negotiations on the future of the Yugoslav state. As part of the conference, the European Community set up an ad hoc arbitration panel of jurists, led by the president of the French Constitutional Court, Robert Badinter. Its mandate was to render non-binding advisory opinions that would clarify legal norms in case of contentious claims.

The conference talks, though, were fruitless as both the JNA and the Croatian forces violated repeated cease® res and the war’s ferocity reached new peaks.

The dangerously escalating con¯ ict in Croatia was dif® cult to curb, but the international legal personality of the SFRY remained unaffected either by the ® ghting or by an additional declaration of sovereignty, this time by Macedonia.

Soon, however, that legal standing began to look increasingly tenuous. On 3 October the representatives of Montenegro, Serbia and Serbia’s two provinces37 on the SFRY presidency, in the absence of members from the other four republics, determined that the country was in the condition of ``an immediate threat of war’’ and, on that ground, decided to conduct the affairs of the SFRY henceforth 35. Trifunovska, op. cit., p. 333.

36. On 3 September 1991 participant s at a CSCE meeting declared that territorial gains within Yugoslavia brought about by violence are unacceptable ; this statement became explicitly noted in UN SC Resolution 713 (25 September 1991), the ® rst UN resolution on the Balkan wars.

37. Since 1989 presidency members representing the two Serbian provinces had been chosen by the Serbian government in Belgrade.

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by only ``the majority of votes of the Presidency members present and voting’’.38 On 5 October the EC foreign ministers rejected ``the seizure of the Presidency by Montenegro and Serbia, which has already been condemned by other Republics of Yugoslavia’’, and stated that they were ``not prepared to acknowledge any decisions taken by a body which can no longer pretend to speak for the whole of Yugoslavia’’.39 On 28 October the European Community went further and called the 3 October decision a ``coup d’eÂtat’’ .40 In his 25 October report the Security Council UN Secretary-General Javier Perez de Cuellar described the SFRY presidency as ``rump’’ and observed ``JNA no longer has political direction from a civilian authority that enjoys the support of all the republics and all communities of the Federation.’’ 41 On 11 October, the ``rump’’ presidency, in conformity with the positions of Serbia and Montenegro, rejected accusations of seizure and warned that every attempt to recognise unilateral secessionist acts would be ¯ agrant interference in the SFRY’s internal affairs and ``an act directed against its international subjectivity and territorial integrity’’.42 Still, at the 4 October Hague meeting, which included Presidents Milosevic and Tudjman, Serbia agreed that what was needed was ``a political solution on the basis of the perspective of recognition of the independence of those republics wishing it, at the end of a negotiating process conducted in good faith’’.43 This process was to involve ``all parties concerned’’ and recognition was to be granted as part of ``the framework of a general settlement’’ which would permit ``no unilateral changes in borders’’.

Later, on 8 November, the European Community repeated ``the prospect of recognition of the independence of those republics wishing it can only be envisaged in the framework of an overall settlement’’.44 The negotiations at the EC peace conference towards a general settlement, however, bore no fruit. Two issues in particular were plaguing the talks: one was the legal description of events in Yugoslavia and the other was the status of Serbs outside Serbia. In the ® rst case, Serbia and Montenegro contended that the four republics sought to secede from Yugoslavia and that the SFRY continued to exist. In contrast, the other four republics maintained that Yugoslavia had been breaking up as a result of concurring exercise of the right to self-determination by the majority of republics. The question was not one of secession and, therefore, the republics were to be considered equal successors to the SFRY, without any of them being able to claim its continuation. On 20 November, Lord Carrington asked the Badinter Commission to give its opinion on the dispute.

The Commission made its judgment on 29 November; it was made public on 38. ``Public StatementÐ 3 October 1991’’, Review of International Studies, Vol. 42, No. 995± 997 (5 October± 5 November 1991), p. 11.

39. Ibid., p. 351.

40. Ibid., p. 368.

41. See paras 21 and 31, UN Document S/23169; the Secretary-General makes clear in his memoirs that the United Nations did not consider the SFRY presidency legitimate after what he says had been its hijacking by Serbia and Montenegro. One practical consequence of the ``de-recognition’’ he mentions was that the letter of Vice-President of the Presidency Milan Vereus was not allowe d to circulate as an of® cial document in the Security Council. See Javier Perez de Cuellar, Pilgrimage for Peace: A Secretary-General’s Memoir (New York: St. Martin’s Press, 1997), pp. 482, 487± 488.

42. Trifunovska, op. cit., p. 354.

43. See UN Document S/23169, Annex II. 44. Trifunovska, op. cit., pp. 379 ± 380.

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7 December as Opinion No. 1. After noting that four republics expressed their desire for independence, the justices observed that ``the composition and workings of the essential organs of the Federation . . . no longer met the criteria of participation and representativeness inherent in a federal State’’.45 Their conclusion was that ``the Socialist Federal Republic of Yugoslavia is in the process of dissolution’’ and that ``it is incumbent upon the Republics to settle such problems of state succession as may arise from this process in keeping with the principles and rules of international law’’.46 James Crawford believes that the underlying rationale for Opinion No. 1 was that ``in the absence of a reconstituted federal government which represented the population of Yugoslavia as a whole, there was no government which had the authority to seek to prevent the separation of the constituent republics, and that such separation would lead inevitably to the disappearance of the Socialist Federal Republic itself ’’ .47 Be that as it may, the only parties disagreeing with the opinion were the rump presidency and the two republics sitting on it. The rest of the world identi® ed as the cause of the SFRY break-up ``a non-functional government rather than the secession of several republics’’.48 Foreign countries and intergovernmental organisations declined to treat the federal authority composed of only Serbia and Montenegro as the legitimate government of the SFRY. This implied that any decision on recognition could be made, at least as far as international law was concerned, without seeking consent of this government.49 A no less critical item that had to be agreed upon in any overall settlement was that of the Serbian population in Croatia and Bosnia-Herzegovina and, by extension, the boundaries of those republics. Serbs in Croatia were engaged in active rebellion against the Zagreb government and in this they were supported

by Serbia and what remained of the federal government, the former arguing at the EC conference on 8 October that ``it was essential for all Serbs to live in one state, not in a number of independent republics bound by little more than interstate relations’’.50 The Bosnian Serb deputies in the Sarajevo parliament boycotted the vote on the republic’s declaration of sovereignty, denouncing it as an unconstitutional act contravening the three-nation consensus principle, and 45. Ibid., p. 417; Opinion No. 8 of 4 July 1992 further explained that ``the existence of a federal state, which is made up of a number of separate entities, is seriously compromised when a majority of these entities, embracing a greater part of the territory and population, constitute themselves as sovereign states with the result that federal authority may no longer be effectively exercised’’ . See ibid., p. 635.

46. Opinion No. 1 also stated, in contrast to the argument here, that ``the existence or disappearance of the State is a question of fact’’ and that ``the effects of recognition by other States are purely declaratory’’ . However, this assertion is in tension with Opinion No. 8 that says ``while recognition of a state by other states has only declarative value, such recognition, along with membership of international organisations, bears witness to these states’ conviction that the political entity is a reality and confers on it certain rights and obligations under international law’’. If recognition indeed confers international rights and obligations, then its effects can be described as ``purely declaratory’’ only with considerable dif® culty. See Steve Terrett, The Dissolution of Yugoslavia and the Badinter Arbitration Commission (Aldershot: Ashgate, 2000), pp. 278, 282 ± 283.

47. Crawford, op. cit., p. 100.

48. Paul Szasz, ``Remarks’’, Proceedings of the 88th Annual Meeting, April 6± 9, 1994 (Washington, DC: The American Society of International Law, 1994), p. 47.

49. Matthew Craven, ``The European Community Arbitration Commission on Yugoslavia’’, British Year Book of International Law 1995 (Oxford: Clarendon Press, 1996), p. 367.

50. Quoted in Silber and Little, op. cit., p. 192.

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established their own ``Assembly of the Serbian people of Bosnia-Herzegovina’’.

They also announced a referendum for 9± 10 November on remaining in Yugoslavia to be held in Serb-inhabited regions.

The question of rights of the Croatian and Bosnian Serbs was thus of utmost urgency. On 20 November, as he enquired into the status of the SFRY, Lord Carrington also requested the Badinter Commission to provide an opinion on Serbia’s question: ``Does the Serbian population in Croatia and Bosnia-Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to selfdetermination?’’ All republics with the exception of Serbia and Montenegro argued no: that right belonged to the republics and all citizens within their boundaries. On 18 December 1991, the rump SFRY presidency put forward this position: The right of self-determination can only be exercised by a people in the sense of the nation and not in the sense of ``demos.’’ This means that a decision based on the said right cannot be made by a vote of all citizens of a particular region, republic or state, except if they are populated by only one people, i.e. nation. Otherwise, the said right would be transformed into self-determination of citizens, instead of the people in the sense of a nation. Neither can this decision be made by the republican assembly (parliament) because it is also an assembly of citizens, rather than a one-nation assembly.

The presidency emphatically maintained that the right of self-determination applied to ethnos (i.e. the ethnonation) as opposed to demos (i.e. all citizens of a particular republic or the civic nation), that the Serbs of Croatia and Bosnia had the right of self-determination as a constituent nation of Yugoslavia and of those republics, and that they had to be, as a result, consulted on their wishes in separate Serbian, not all-republican, referenda.51 The Commission, in Opinion No. 2 dated 11 January 1992, asserted that ``. . . it is well-established that, whatever the circumstances, the right to selfdetermination must not involve changes of existing frontiers at the time of independence (uti possidetis juris) except where the States concerned agree otherwise’’. 52 In the absence of such agreement, it contended, the Serbs in the two republics were entitled only ``to all the rights accorded to minorities and ethnic groups under international law . . .’’ In Opinion No. 3, released on the same day as a response to Serbia’s query whether its internal borders with Croatia and Bosnia can be regarded as frontiers in terms of public international law, the Commission maintained that ``except where otherwise agreed, the former boundaries become frontiers protected by international law’’. It then elaborated on the principle of uti possidetis by underlining its global character: Uti possidetis, though initially applied in settling decolonization issues in America and Africa, is today recognized as a general principle, as stated by the International Court of Justice in its Judgment of 22 December 1986 in the case between Burkina Faso and Mali (Frontier Dispute, (1986) ICJ Reports 554 and 565): ``Nevertheless the principle is not a special rule which pertains solely to one speci® c system of international law. It 51. Trifunovska, op. cit., pp. 478 ± 479.

52. Ibid., pp. 474 ± 475.

160

M. Fabry is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles . . .’’ 53

The Commission also noted that ``the principle applies all the more readily to the Republics since . . . Article 5 of the Constitution of the SFRY stipulated that the Republics’ territories and boundaries could not be altered without their consent’’ and underscored that ``according to a well-established principle of international law the alteration of existing frontiers or boundaries by force is not capable of producing any legal effect’’.

Many Serb politicians were enraged by these verdicts and vowed to ignore them.54 Offers of recognition of Bosnian and Croatian sovereignty without some sort of prior settlement with Serbia and the Serbs of the two republics were thus bound to create, especially in the still-peaceful Bosnia where Serbs constituted the second-largest group, a highly explosive environment. Yet this is exactly what took place in the end. With no settlement on the future of Yugoslav republics and armed with the Badinter Commission opinion that the SFRY was in the process of dissolution, the European Community changed its 8 November position. On 16 December 1991, the European Community proposed in its ``Declaration on Yugoslavia’’ to recognise independence of all republics wishing it, provided that they ful® lled the ``Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union.’’ 55 Among other conditions, the republics had to pledge they had no territorial ambitions vis-aÁ-vis their neighbours and respected the inviolability of all frontiers, and adopt extensive minority rights legislation in line with the strictest CSCE criteria.

The main driving force behind the shift in EC policy was Germany. The Bonn government became strongly convinced that the ® ghting in Yugoslavia was a consequence of what it called ``Serbian aggression’’. It contended that ``preventive 53. Ibid., p. 480.

54. It is important to realize that ethnonational self-determination, despite being widely rejected in the early 1990s, was once supported internationally and that the Serb appeals to it were thus not altogether unreasonable. US Ambassador to Yugoslavia (1988 ± 1992) Warren Zimmermann calls the principle ``All Serbs in one state’’ a ``pernicious doctrine’’, but he overlooks that it was US President Woodrow Wilson who was the main champion of ethnonational self-determination in Central and Eastern Europe at the end of World War I. He was also the ® rst to recognize the Kingdom of Serbs, Croats and Slovenes, as Yugoslavia was called initially. The acquiescence of Serbia, sovereign since 1878, to join other South Slavs in a common state was explicitly based on the ``pernicious’’ principle: it promised to unite ethnic Serbs from Serbia with those outside Serbia. The principle was, by the same token, responsible for the end of the Habsburg empire to which several million ethnic Serbs previously belonged and against which many of them rebelled, not least when Bosnian Serb Gavrilo Princip assassinate d the successor to the Austro-Hungarian throne in late June 1914. It was not the territorial integrity of a multiethnic dynastic conglomerate that was to count in the Balkans, but, to quote from Wilson’s famous Fourteen Points speech, ``historically established lines of allegiance and nationality’’. Word War I, Wilson maintained, ``had its roots in the disregard of the rights of small nations and of nationalitie s which lacked the union and force to make good on their claim to determine their own allegiance s and their own forms of political life’’. See, respectively, Warren Zimmermann, Origins of a Catastrophe (New York: Times Books, 1999), p. 195; Trifunovska, op. cit., p. 143; and Arthur Link (ed.), The Papers of Woodrow Wilson, Vol. 46 (Princeton, NJ: Princeton University Press, 1984) , p. 321.

55. Both documents are reprinted in European Journal of International Law, Vol. 4, No. 1 (1993) , pp. 72± 73.

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recognition’’ would have a constitutive effect and provide legal grounds for declaring the presence of the JNA in Croatia an unsolicited intervention against a sovereign country. International law allows in such a case counter-intervention, including all forms of foreign military assistance, against the intervening state.56 Germany’s foreign minister of the day, Hans-Dietrich Genscher, writes that his government worked on the assumption that ``delaying recognition would lead to further escalation of violence by Yugoslavia’s People’s Army, since the troops would necessarily regard our refusal to recognize the republics as an encouragement for their policy of conquest toward Croatia’’.57 The German initiative within the European Community was resisted most strongly by the United States and the United Nations. While not rejecting recognition of Yugoslav republics in principle, UN Secretary-General Javier Perez de Cuellar in his letter to the Dutch foreign minister (The Netherlands at the time chaired the European Community) of 10 December, expressed apprehension that premature recognition of some of them without an overall settlement could be a ``potential time bomb’’.58 He added: Let me be clear: I am not in any way calling into question the principle of self-determination which is enshrined in the Charter of the United Nations. However, I am deeply worried that any early, selective recognition could widen the present con¯ ict and fuel the explosive situation especially in Bosnia and Herzegovina . . .

Lord Carrington, opposing the planned decision of his own organisation, wrote to the Dutch Minister on 2 December that premature recognition of Croatia by the European Community ``might well be the spark that sets Bosnia-Herzegovina alight’’.59 Cyrus Vance, the UN envoy for Yugoslavia, assessed the situation in a 5 December conversation with US ambassador Warren Zimmermann in these terms: ``My friend Genscher is out of control on this. What he is doing is madness.’’ 60 Carrington and Vance wanted recognition to be withheld until the Yugoslav republics had all agreed on their mutual relationships. To do it before meant, in their view, that the situation was being prejudged in favour of some and at the expense of others. And that promised more war. Prophetically, Zimmermann himself cabled to Washington on 20 December that ``let nobody believe that the ten thousand or so who have died so far [in Croatia] mean that violence has reached its peak. A war in Bosnia could increase that number tenfold.’’ 61 56. Germany, of course, neither planned to ® ght the JNA nor did it believe that the United States or the other EC states, would, since many had actually opposed recognition of republics prior to the overall settlement. Helmut Kohl’s government hoped that recognition would have, above all, a deterring effect on the Serbs. Even one of the staunchest defenders of Germany’s policy towards Yugoslavia in 1991 admits that ``the essential ¯ aw in German policy was . . . that Germany herself could not really contribute to the policie s that logically followed from her own attitude; namely, to the protection, by military means if necessary, of the smaller Yugoslav republics and nations against Serb aggression’’. See Michael Libal, Limits of Persuasion: Germany and the Yugoslav Crisis, 1991± 1992 (Wesport, CT: Praeger, 1997), p. 163.

57. Hans-Dietrich Genscher, Building a House Divided: A Memoir by the Architect of Germany’s Reuni® cation, Thomas Thornton (trans.) (New York: Broadway Books, 1998), p. 489.

58. See UN Document S/23280, Annex IV (11 December 1991).

59. Quoted in Woodward, Balkan Tragedy, op. cit., p. 184.

60. Zimmermann, op. cit., p. 177.

61. Ibid., p. 178.

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These cautionary voices were ignored and Croatia was recognised ® rst by Germany on 23 December and then by the other 11 EC member states on 15 January 1992.62 The German government did not even wait for, and others did not take into account, the Badinter Commission’s advice as to the suitability of Croatia for recognition. Opinion No. 5, released four days before EC recognition, actually suggested that the Croatian Constitution did not provide suf® cient guarantees for protection of minorities and that, hence, Croatia did not meet all the conditions listed in the EC’s own Guidelines.’’

The recognition strengthened the resolve of Croatian Serbs,63 whose leadership on 19 December declared the ``Republic of Serbian Krajina’’, dramatically radicalised the Serbian community in Bosnia and encouraged those Bosnian Croats who had no commitment to a uni® ed Bosnia and wished to attach Croatinhabited areas to Croatia. On 21 December, the day after Bosnia (most of its governmental institutions without the representatives of Serb political parties for two months now) submitted its request to be recognised by the European Community, the ``Assembly of the Serbian People’’ created a separate Bosnian Serb republic within the federal Yugoslav state. The independence of the ``Republic of Srpska’’ from Bosnia was then proclaimed on 9 January. Also in January, the new leader of what was in effect a Bosnian branch of Tudjman’s HDZ, Mate Boban, af® rmed the intention of Bosnian Croats to establish in parts of Herzegovina a separate ``Croat Community of Herzeg-Bosna’’.64 62. Most EC states, and especially Britain and France, were very uneasy about recognition, but, following Germany’s noti® cation that it was prepared to recognize Croatia unilaterally, they concurred. They wished to demonstrate the Community’s unity in EC foreign relations. The question of imminent German recognition surfaced right in the wake of the Maastricht Treaty and the EC members did not want to be publicly seen as marring the prospects of the newly instituted ``Common Foreign and Security Policy’’ . But privately grave doubts remained. Francois Mitterand, the French president, asked in an early December newspaper interview whether states that were pressing for immediate recognition planned to dispatch troops to support the fact of Croat and Slovene statehood.

Roland Dumas, his foreign minister, later went as far as to say that by recognising Croatia German diplomacy fuelled the war in Bosnia. See, respectively, Thomas Grant, The Recognition of States: Law and Practice in Debate and Evolution (Westport, CT: Praeger, 1999), p. 175; and Michael Thumann, ``Between Ambition and ParalysisÐ Germany’s Policy Toward Yugoslavia 1991± 3’’, Nationalities Papers, Vol. 25, No. 3 (1997), p. 581; The desire to present a united front was obvious also in the decision to postpone Macedonia’s recognition. Even though the Badinter Commission, in Opinion No. 6, took the view that Macedonia actually satis® ed the EC criteria for recognition, the EC member states did not do so because of Greece’s categorical objections. Greece would block the recognition of Macedonia by otherwise willing EC states for more than a year.

63. A less than stable cease® re agreement was signed in Croatia in January 1992, but its price was that the Croatian government was not able to control about a quarter of the republic’ s territory and was actually separated from it by the UN peacekeepers who arrived in February. The Krajina Serbs vehemently opposed being governed from Zagreb and rather linked themselves with the Bosnian Serbs and Serbia proper.

64. Woodward, Balkan Tragedy, op. cit., pp. 194, 472; Boban, Tudjman’s prote ge and a hand-picked choice to lead the main Bosnian Croat party, formally proclaimed the independence of ``HerzegBosna’’ on 3 July 1992. In his conversations with foreign of® cials the Croatian president did not hide his preference to divide Bosnia between Croatia and Serbia. Several of his ministers, and in particular minister of defence Gojko Susak, who was himself born in Herzegovina, strongly pressed the government for a military intervention in the neighbouring republic. Tudjman discussed the division of Bosnia with Milosevic several times, at one point even while the JNA bombarded towns and village s in Croatia. What Tudjman did not want Serbia to have in Croatia he was apparently willing to seek in Bosnia. For more details, see Zimmermann, op. cit., pp. 181± 186; and Perez de Cuellar, op. cit., p. 483.

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The European Community heeded the advice of the Badinter Commission’s Opinion No. 4, handed down on 11 January 1992, that Bosnia should not be recognised since ``the will of the peoples of Bosnia and Herzegovina’’ to constitute a ``sovereign and independent State cannot be held to have been fully established’’.65 The European Community and the United States pressed the Sarajevo government to hold a referendum on independence, similar to those that took place earlier in Slovenia and Croatia. But the dif® culty with the plebiscite, held on 29 February± 1 March 1992, was that it was predicated on the simple majority of all citizens, a principle which the Bosnian Serbs, a constituent nation of the republic, fervently rejected as contrary to the Bosnian constitution.66 Zimmermann’s admonition of the leader of Bosnian Serbs, Radovan KaradzicÐ ``why do you not participate in the referendum on independence and come to terms with the fact that with thirty percent of the population Serbs cannot be expected to dictate the outcome?’’ 67Ð might have been grounded in a sound civic precept but, given the Bosnian consociational system in which two peoples could not impose a constitutional change on the third one, it was fundamentally misguided. Stipe Mesic, the last president of the SFRY presidency and the current president of Croatia, for example, warned in a 15 February speech that holding a referendum on which there was no consensus among the three Bosnian peoples would lead to war.68 Almost all Bosnian Serbs boycotted the ``illegal’’ referendum and their leadership predicted disaster if independence of the republic were to be recognised internationally.

Even though the United States heavily criticised Germany for breaking the collective non-recognition consensus, its government virtually replicated the earlier German reasoning in Croatia and in March 1992 pressed for speedy recognition of Bosnia. This shift in the aftermath of the majority vote for independence took place even though one of the Bosnian peoples vehemently rejected independence. Ambassador Zimmermann, echoing Genscher in December 1991, later wrote that ``our view was that we might be able to head off a Serbian power grab by internationalizing the problem’’.69 He elaborated in his memoirs: The Community’s action had changed the whole political landscape.

Now the Europeans had recognized Croatia and Slovenia, and Izetbegovic’s Bosnia was threatened with isolation in a Milosevic-dominated ``Serbo-slavia.’’ To keep Bosnia in international limbo would increase that isolation and assist Serbian designs . . . I believed that early Western recognition, right after the expected referendum majority with independence, might present Milosevic and Karadzic with a fait accompli dif® cult for them to overturn.70 65. Trifunovska, op. cit., p. 486.

66. The Bosnian Croats participate d in the referendum and voted for an independent Bosnia, but essentially for tactical reasons. Croatia and those Bosnian Croats who wanted to amalgamate with Croatia thought that this goal would be easier to accomplish in a Bosnia that already had been separated from Yugoslavia. I agree with Burg and Shoup who argued, ``in the end the Croat vote for the Bosnian government’s version of the referendum must be understood in the light of Zagreb’s desire to see Bosnia separated from Yugoslavia’’ . See Bourg and Shoup, op. cit., p. 107.

67. Zimmerman, op. cit., p. 187.

68. Burg and Shoup, op. cit., p. 108.

69. Quoted in Emil Nagengast, ``German and U.S. Intervention against Yugoslav Sovereignty’’, in Andrew Valls (ed.), Ethics in International Affairs (Lanham, MD: Rowman and Little® eld, 2000), p. 160.

70. Zimmerman, op. cit., pp. 191± 192.

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The American conjectures that recognition would deter the Serbs from ® ghting, however, failed miserably. As Steven Burg and Paul Shoup contend, no matter how hard it might have been to accomplish, ``only a negotiated solution agreed by all three nationalist parties could avert the mounting crisis’’.71 As in the case of Croatian Serbs, the Bosnian Serbs feared living as a minority and were not prepared to watch passively being reduced to that position. Hostilities in Bosnia began almost immediately after US and EC recognition on 7 April 1992. The country descended into a brutal war in which the Bosnian Serbs were supported by the JNA and the Bosnian Croats by the Croatian Army. One analyst later commented that ``the West came to Yugoslavia as ® re ® ghters and ended up being pyromaniacs’’.72 What can one say at this point about international norms of territorial integrity?

Do not the evident instrumental calculations of Germany and the United States actually demonstrate that norms did not count in the two con¯ icts, the very opposite of this paper’s argument? Do not these calculations in fact prove the realist contention that in security matters states behave exclusively as it ® ts their interests and, beyond paying lip service, care little about norms? The answer to both questions is no. A norm establishes ``rules of the game’’ or boundaries of permissible political activity and legitimate state interests. It prescribes broad standards of conduct that ought to be followed because the norm is deemed binding. But while norms both constrain and shape political choices, they do not fully determine these choices. They are not and cannot be all-encompassing foreign policy guidelines. By de® nition, non-instrumental norms provide no guide to instrumental questions like timing or effectiveness that are indispensable in any foreign policy decision.

Put differently, one must distinguish between the stipulation of norms and acting in accordance with norms. The Badinter Commission clari® ed what the international norms of territorial integrity were in the circumstances of a country’s dissolution and, besides Serbia and Montenegro, no state disagreed with the panel’s opinions. The Commission implied that those Yugoslav republics wishing independence could be recognised in their previous borders without the assent of the rump SFRY government. However, EC and other governments still had to decide when and how to recognise the republics. They had a choice of going the Genscher or Vance± Carrington± Perez de Cuellar route. Perez de Cuellar warned the Security Council and UN members in his 25 October 1991 report on Yugoslavia that ``wisdom and prudence are . . . required in connection with the seeking of recognition of unilateral declarations of independence’’ .73 These qualities might have been largely missing from the decision to recognise Croatia and BosniaÐ which came about in the midst of dangerously unsettled conditions on the ground and without any commitment on the part of recognising countries to intervene should the situation subsequently deteriorateÐ but that does not imply that norms played little or no role.

One can clearly register the constitutive and prescriptive effects of Bosnian recognition as early as May 1992. Once recognised, Bosnia could seek member71. Burg and Shoup, op. cit., p. 105.

72. Quoted in Alex Dragnich, Yugoslavia’s Disintegration and the Struggle for Truth (Boulder, CO: East European Monographs, 1995), p. 110.

73. See para. 32, UN Document S/23169.

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ship in international organisations, which it did, and rather successfully. On 22 May it became, together with Slovenia and Croatia, a member state of the United Nations.74 Even before this act, UN SC Resolution 752 (15 May 1992) referred to ``the former Socialist Federal Republic of Yugoslavia’’ 75 and demanded that all units of the JNA and the Croatian Army ``now in Bosnia and Herzegovina must either be withdrawn, or be subject to the authority of the Government of Bosnia and Herzegovina, or be disbanded and disarmed’’. Resolution 757 (30 May 1992) then imposed stringent sanctions on Serbia and Montenegro for failing to do that.76 The same document not only stated that ``no territorial gains or changes brought about by violence are acceptable . . . and the borders of Bosnia and Herzegovina are inviolable’’,77 but both resolutions also unequivocally classi® ed the JNA and Croatian Army presence in Bosnia as ``interference from outside’’.

Given that the Council had not even reacted to the plea of Slovenian President Milan Kucan on 28 June 1991Ð less than a year before Resolution 752Ð that the United Nations take action against the JNA ``invasion and foreign occupation’’, on the ground that the armed clashes in Slovenia constituted an internal Yugoslav matter,78 the content of these resolutions was indeed a remarkable re¯ ection of the swift change in the political/juridical map of the Balkans.

Over the three years of its duration the Bosnian war became a theme of protracted debates both within national governments and within intergovernmental organisations. The Vance± Owen Peace Plan ( January 1993), the Owen± Stoltenberg Plan (August 1993, revised in September of the same year as the Invincible Plan), the European Union Action Plan (December 1993), the Contact 74. See UN General Assembly Resolutions 46/236 (admission of Slovenia), 46/237 (BosniaHerzegovina) and 46/238 (Croatia).

75. The UN not only judged that the SFRY had ceased to exist, but also denied the assertion of the Federal Republic of Yugoslavia, jointly proclaimed on 27 April 1992 by Serbia and Montenegro, that it was the continuing state of the former SFRY. On that basis, Resolution 757 noted that the claim by the FRY ``to continue automaticall y the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations has not been generally accepted’’ . In Resolution 777 (19 September 1992) the Security Council, ``considering that the state formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist’’, recommended ``to the General Assembly that it decide that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations’’ as a new state. The General Assembly did just that in its Resolution 47/1 (22 September 1992), but it did not, intriguingly, bar the FRY from occupying the old seat of Yugoslavia in the Assembly. The FRY applied for UN membership with success only after the fall of Slobodan Milosevic on 6 October 2000. The Security Council recommended the FRY’s admission in Resolution 1326 (31 October 2000) and the General Assembly heeded the recommendation in Resolution 55/12 (1 November 2000) admitting ``the Federal Republic of Yugoslavia to membership in the United Nations’’.

76. The JNA withdrew from Bosnia at the end of May as it did from Croatia in early January, but the UN Security Council judged that Serbia and Montenegro still provided considerable war-enabling support to the Bosnian Serbs.

77. Later, dozens of UN SC resolutions would repeat the commitment of UN member states to ``the sovereignty, territorial integrity and political independence of the Republic of Bosnia and Herzegovina and the responsibility of the Security Council in this regard’’ and ``preserving the territorial integrity of all the States [in the Balkan region] within their internationally recognized borders’’ (italics added). One text, Resolution 787 (16 November 1992), expressed deep concern at ``the threats to the territorial integrity of the Republic of Bosnia and Herzegovina, which, as a State Member of the United Nations, enjoys the rights provided for in the Charter of the United Nations’’ and af® rmed that ``any entities unilaterally declared or arrangements imposed in contravention [of Bosnia’s territorial integrity] will not be accepted’’ .

78. Perez de Cuellar, op. cit., p. 477; Silber and Little, op. cit., p. 156; Steinberg, op. cit., p. 38.

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Group Plan ``A’’ ( July 1994) and the Contact Group Plan ``B’’ (February 1995), the lifting of the arms embargo so that Bosnian Muslims could have better means to defend themselves, the actual effect of the sanctions against Serbia and Montenegro, the plan for a Muslim± Croat federation in the face of surprisingly intense antagonism between the two communities, the competence of UN peacekeepers on the ground, the sagacity of creating UN ``safe havens’’ when the publicly declared determination to enforce them appeared to lack credibility, and, most agonisingly, the question of direct military involvement, all generated heated discussions. Yet whereas the precise extent of international responsibility towards the new state was much debated, the normative underpinnings on which the end of the war was to be based did not become subject to any real dispute. This is perhaps why they have not been widely emphasised by scholars. For instance, the repeated suggestion of prominent realist scholar John Mearsheimer and his colleagues that an imposed partition of Bosnian territory is the only viable solution to the con¯ ict79 was never accepted as a proposal worthy of serious attention. Mearsheimer might well have been right to believe that giving parts of Bosnia to Serbia and Croatia would decrease human and other costs both for the people of Bosnia and for outsiders involved, but these were not the only relevant considerations. There was nobody who would publicly endorse forcible changes of international borders.

How is one to understand this persistent refusal to contemplate modi® cations of Bosnian borders? After all, whilst the International Conference on the Former Yugoslavia (ICFY)80 in its ``Statement on Bosnia’’ on 27 August 1992 repudiated all ``attempts to gain territory by the use of force’’ and called for recognition of Bosnia by ``all the former Yugoslav Republics’’ as a condition of the peace settlement, it expressly allowed for frontier changes by mutual agreement.81 Yet even though the Sarajevo government could legally negotiate territorial changes with Croatia and the Federal Republic of Yugoslavia, this option was never suggested to the Bosnian leadership by international diplomacy. Adoption of such a position would inevitably have implied that the multiethnic Bosnia was a failure and that ethnic cleansing, so universally reviled and vili® ed,82 was an authentic expression of the reluctance of different peoples of Bosnia-Herzegovina 79. See Mearsheimer and Pape, op. cit., Mearsheimer and Van Evera, op. cit., and John Mearsheimer, ``The Only Exit from Bosnia’’, The New York Times (7 October 1997).

80. On 26 August 1992, the EC-sponsored ``Conference on Yugoslavia’’ was replaced by the ``International Conference on the Former Yugoslavia’’. The ICFY was to be run together by the European Community and the United Nations. Lord Carrington did not wish to continue his involvement and was succeeded by two co-chairmen: David Owen, representing the European Community, and Cyrus Vance, representing the United Nations.

81. Trifunovska, op. cit., pp. 701± 702.

82. Resolution 787 (16 November 1992) was among the earliest UN SC resolutions containing the phrase ``ethnic cleansing’’ . It warned ``taking any territory by force or any practice of `ethnic cleaning’ is unlawful and unacceptable , and will not be permitted to affect the outcome of the negotiations on constitutional arrangements for the Republic of Bosnia and Herzegovina’’ . Similar formulations appeared in many other Security Council resolutions. The unanimously adopted Resolution 819 (16 April 1993) used perhaps the strongest language of all UN documents on the Bosnian con¯ ict. It condemned ``the deliberate actions of the Bosnian Serb party to force the evacuation of the civilian population from Srebrenica and its surrounding areas as well as from other parts of Bosnia and Herzegovina as part of its overall abhorrent campaign of `ethnic cleansing’’’. The organized rape and internment of women, ``in particular Muslim women’’, that accompanie d this campaign were condemned for the ® rst time in Resolution 798 (18 December 1992) as ``acts of unspeakable brutality’’ .

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to live together in an independent country. UN SC Resolution 836 (4 June 1993) instead stressed the following general outline for the Bosnian settlement: The lasting solution to the con¯ ict in Bosnia and Herzegovina must be based on the following principles: immediate and complete cessation of hostilities, withdrawal from territories seized by the use of force and ``ethnic cleansing’’, reversal of the consequences of ``ethnic cleansing’’ and recognition of the right of all refugees to return to their homes, and respect for the sovereignty, territorial integrity and political independence of Bosnia and Herzegovina.

Throughout the war the Serb entities in Croatia and Bosnia and the Croat entity in Bosnia were denied international recognition. The Serb entities had become, together with Serbia and Montenegro, which continued to support them, targets of debilitating international embargo.83 For the Krajina Serbs the war had a dire end: on 4 August 1995 the Croatian Army bypassed the UN peacekeepers’ lines and attacked Serb-held regions in two out of four UN Protected Areas (Sectors North and South). While the operation ``Storm’’ was ferocious and reminiscent of earlier scenes of ethnic cleansing undertaken by the Bosnian Serb Army against the Muslim population, international protests were tepid, partly because the Croatian government was ``reintegrating’’ its own, i.e. internationally recognised, territory.84 The war in Croatia in effect ended with the departure (and in some cases undoubtedly removal) of most Krajina Serbs from Croatia.85 83. Many sanctions against Serbia and Montenegro were, interestingly, temporarily suspended by UN SC Resolution 943 (23 September 1994) after the FRY had accepted the Contact Group peace plan of July 1994 for Bosnia and its government decided to close ``the international border between the Federal Republic of Yugoslavia (Serbia and Montenegro) and the Republic of Bosnia and Herzegovina’’ (italics added), and thus cut off its assistance to the Bosnian Serbs. Earlier on the same day as Resolution 943, the Security Council passed Resolution 942, which ``resolved to reinforce and extend the measures imposed by its previous resolutions with regard to those areas of the Republic of Bosnia and Herzegovina under the control of Bosnian Serb forces’’, given ``the decision by the Bosnian Serb party to refuse to accept’’ yet another peace plan for the uni® ed Bosnian state. Not incidentally, the sanctions against the FRY were only suspended inde® nitelyÐ by UN SC Resolution 1022 (22 November 1995)Ð once its government acceded to the Dayton Peace Agreement and recognized independence and the internationally recognized boundaries of Bosnia. In the same resolution, adopted the day after Dayton, the Council determined that the sanctions against the Bosnian Serb government would not be suspended until the Bosnian Serb forces retreated behind the lines of military separation established in the Peace Agreement.

84. ``Reintegration’’ was used, for instance, in the UN Secretary-General’s report on Croatia to the Security Council. See para. 32, UN Document S/1995/730 (23 August 1995).

85. Operation ``Storm’’ was preceded by a smaller operation ``Flash’’ in early May 1995 in which the Croatian forces took over Western Slavonia (Sector West). During the Dayton negotiations on 12 November 1995 the Serb representative s from Sector East, the one remaining region not yet under the Zagreb government’s control, signedÐ in the desire to avoid the fate of their fellow Croatian SerbsÐ an agreement on the gradual transfer of the area to the Croatian government. UN SC Resolution 1025 (30 November 1995) welcomed the agreement, af® rmed that ``the territories of Eastern Slavonia, Baranja and Western Sirmium, known as Sector East, are integral parts of the Republic of Croatia’’ and decided to end the UN peacekeeping presence in Croatia by 15 January 1996. On this day the Council in its Resolution 1037 established an 11-month-long United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium to oversee the implementation of the 12 November 1995 agreement. By January 1997 the unrecognized ``Republic of Serbian Krajina’’ had been wiped off the map completely and the entire Croatian territory had fallen under direct control of the Zagreb government. Even before this date, the FRY and Croatia formally af® rmed that they recognized each other’s boundaries in a bilateral Agreement on Normalization of Relations signed on 23 August 1996.

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In Bosnia, the war ended after the military position of the Bosnian Serb Army had weakened as a result of a joint Muslim± Croat ground offensive in August 1995 and Nato air strikes several weeks later. The formal termination of the war came with the Dayton Peace Agreement of 21 November 1995 between BosniaHerzegovina, Yugoslavia and Croatia, the two key articles of which read as follows: Article I . . . the Parties shall fully respect the sovereign equality of one another, shall settle disputes by peaceful means, and shall refrain from any action, by threat or use of force or otherwise, against the territorial integrity or political independence of Bosnia and Herzegovina or any other State.

Article X The Federal Republic of Yugoslavia and the Republic of Bosnia and Herzegovina recognize each other as sovereign independent States within their international boundaries.

The Territorial Covenant and the Kosovo War If there had been an instance in the last decade’s long saga of Balkan con¯ icts when the international territorial norms could have been disregarded, Kosovo must surely have been it. After all, Nato not only intervened militarily against the very country the province had been part of; the alliance also justi® ed its attack by reprehensible treatment of the Kosovo Albanians in the hands of the Yugoslav troops. The alliance members could have endorsed independence of Kosovo without Yugoslavia’s consent on the basis of the unmistakable wishes of Kosovo Albanians, the absolute majority of the province’s population, to separate from Yugoslavia and the intolerable repression they had to endure, and then demand Yugoslav acquiescence as part of the conditions of truce. Yet this is not what took place.

As indicated above, the whole crisis in the SFRY began over the constitutional status of Kosovo. The unscrupulous revocation of Kosovo’s provincial autonomy in 1989 not only sent shockwaves through some of the Yugoslav republics, but was also met by the near total boycott of republican and federal institutions by the ethnic Albanian population. Still, when the ``Republic of Kosova’’ was proclaimed sovereign following the 26± 30 September 1991 underground referendum on secession, no countryÐ with the exception of AlbaniaÐ recognised it.

The Kosovo Albanian leadership applied for EC recognition on 22 December 1991, right in the aftermath of the European Community’s offer to recognise those Yugoslav republics wishing it, but the Community, as in the case of Croatian Serbs, refused to consider the application.86 However one chose to read the 1974 federal constitution, neither the jurisdiction of Kosovo nor the Kosovo Albanians had a right of self-determination. Kosovo was not a republic of Yugoslavia but a province of one of its republics, and the Kosovo Albanians were not a constituent nation but a nationality.87 Later, on 15 June 1992, the 86. Roland Rich, ``Recognition of States: The Collapse of Yugoslavia and the Soviet Union’’, European Journal of International Law, Vol. 4, No. 1 (1993), pp. 61± 62.

87. By ``nationality’’ the constitution understood an ethnonational minority whose ethnic kin formed a nation-state outside the SFRY. In the case of Kosovo Albanians this was Albania.

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European Community would issue a statement that plainly mischaracterised the real Kosovo Albanian aims: The Community and its member States recall that frontiers can only be changed by peaceful means and remind the inhabitants of Kosovo that their legitimate quest for autonomy should be dealt with in the framework of the EC Peace Conference. They also call upon the Albanian government to exercise restraint and act constructively.88 The unequivocal rejection of Kosovo Albanians’ claims by international society at ® rst left the Yugoslav and Serbian governments rather unhindered in dealing with the adverse situation. When in early 1998, however, they had been confronted by armed attacks of the Kosovo Liberation Army (KLA), a group believed to have been formed in 1997 against the organs of state authority, external involvement in the con¯ ictÐ primarily by Western statesÐ increased sharply.

The guerrilla-style hit-and-run assaults of the KLA were usually followed by reprisals of the government security forces designed to stem the ¯ edgling insurgency and to re-establish the control of the whole Kosovo territory. Because it caused extensive suffering to the civilian population caught in the cross® re, the Yugoslav counter-insurgency tactics were judged unacceptably harsh.

Still, every international attempt to deal with the violent developments in Kosovo stressed that Kosovo was part of the FRY and that the territorial integrity of Yugoslavia was guaranteed. Even while UN SC Resolution 1160 (31 March 1998) imposed a mandatory arms embargo on Yugoslavia until Belgrade had ``withdrawn the special police units and ceased action by the security forces affecting the civilian population’’, it reaf® rmed ``the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia’’. Contrary to the aspirations of Kosovo Albanians, the Security Council, similarly to the European Community in 1992, expressed sympathy only ``for an enhanced status for Kosovo which would include a substantially greater degree of autonomy and meaningful self-administration’’; i.e. roughly the status Kosovo enjoyed under the 1974 SFRY constitution. These objectives did not change with the worsening situation in Kosovo and the Nato threat of force against the FRY issued on 9 October 1998; in Resolutions 1199 (23 September 1998) and 1203 (24 October 1998) the Council repeated them in language identical to that of Resolution 1160.

As international appeals for a cease® re did not materialise, in early February 1999 the Contact Group summoned the Yugoslav and Serbian governments and the Kosovo Albanians to negotiate at a castle in Rambouillet, France. The parties were presented with a set of ``non-negotiable principles/basic elements’’ for a settlement. These contained ``territorial integrity of the FRY and neighbouring countries’’ and ``high degree of self-governance for Kosovo’’.89 One cannot fail to mention in this respect that on 30 January the Nato Council again decided that Javier Solana, Nato’s Secretary-General, might authorise air strikes against the FRY. The warning of military force was to compel Yugoslavia to come to France 88. Trifunovska, op. cit., p. 615.

89. Quoted in Marc Weller, ``The Rambouillet Conference on Kosovo’’, International Affairs, Vol. 75, No. 2 (1999), p. 225.

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and to agree in a speci® ed time frame to an interim political settlement.90 Given the explicit threat, whatever consent the FRY might have given to possible change in Kosovo’s status or boundaries at Rambouillet could not have easily been considered to meet the condition of ``mutual agreement’’, as the phrase is understood by the Vienna Convention on the Law of Treaties.91 Still, Nato member states had no intention of simply recognising the province’s independence. This would have entailed acting against the wishes of its legitimate sovereign government and contravened the territorial covenant. Such a scenario arose, as suggested above, only once after 1945 in the case of Bangladesh. There were no of® cial suggestions that something similar may transpire in regard to Kosovo.

There is still heated controversy surrounding the Rambouillet events, but for the purposes of this paper the wildly differing interpretations of what actually took place in the medieval French chateau are not all that important. The second draft of the Rambouillet document, which Russia claimed its envoy had been excluded from seeing before it was presented to the two parties,92 and which Yugoslavia claimed had not been negotiated at all but rather imposed, provided for an international conference on Kosovo’s ultimate status in three years. Its Article I (3) contained an ambiguous reference to ``the will of the people’’ as forming a basis of the ® nal settlement and, as Marc Weller writes, ``the delegation of Kosovo obtained certain assurances that this formula actually establishes a legal right to hold a referendum of the people of Kosovo (as opposed, say, to the people of the FRY or the Serb Republic).’’ 93 Being suspicious that this was what was in reality meant by the reference, the joint Yugoslav± Serb delegation rejected Article I and, objecting to other provisions of the package, also the entire Rambouillet proposal.

What came after this rejection is not subject to debate. On 24 March 1999 Nato, invoking the notion of humanitarian intervention, launched air strikes against the FRY. The alliance’s stated objective was ``to prevent more human suffering and more repression and violence against the civilian population of Kosovo’’.94 Operation Allied Force was halted only with the cease® re agreement of 9 June that obligated the Yugoslav forces to withdraw from Kosovo. After Rambouillet, however, Yugoslavia was confronted with no text that could have possibly been interpreted as permitting change in Kosovo’s status without the consent of its government. Resolution 1244 (10 June 1999) that authorised the UN military and civilian presence in the province reaf® rmed ``the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia’’. The UN civilian administration was itself directed 90. The 30 January letter from Nato Secretary-General to Yugoslav President Slobodan Milosevic containing the threat of force, as well as the 1 February letter from the Yugoslav foreign minister to the UN Security Council stating that this threat violate s Article 2 (4) of the UN Charter, are part of UN Document S/1999/107 (2 February 1999).

91. Article 52 of the Vienna Convention, which was signed in 1969 and came into force in 1980, states that ``a Treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations’’.

92. Ruth Wedgwood, ``NATO’s Campaign in Yugoslavia’’ , American Journal of International Law, Vol. 93, No. 4 (1999) , p. 831.

93. Weller, op. cit., p. 245.

94. See Solana’s press statement (23 March 1999), available : < http://www.nato.int/docu/pr/ 1999/p99-040e.htm > .

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``to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia’’.

Concluding Re¯ ections The central contention of this paper is that international territorial norms had considerable bearing on the Balkan con¯ icts of the last decade. The international response to these wars was not, as it is sometimes portrayed, entirely haphazard, opportunistic or arbitrary. Still, it is undeniable that the way these norms were employed in Yugoslavia privileged certain claims over others and that this had deplorable repercussions. While it would be erroneous to argue that international reliance on territorial norms ``caused’’ the war in Bosnia, hasty recognition of Croatian and Bosnian sovereignty nevertheless added fuel to the ® re and contributed to the immediate escalation of the con¯ ict.

However, be that as it may, once the society of states had extended recognition to Croatia and Bosnia in their former republican boundaries, this reality became paramount and no reversals were contemplated. International legitimacy of the Bosnian state certainly carried more weight than its dramatic internal illegitimacy or, as numerous Croatian and Serbian politicians liked to put it, its ``arti® ciality’’.

Regardless of how much the Bosnian Serbs and Croats, who together make between 50 and 53% of Bosnia’s population, might have wished to unite with their ``motherlands’’, they were denied this choice and uti possidetis juris prevailed. Uti possidetis triumphed even in Kosovo where the bene® ciary of this norm, the FRY, became the target of relentless bombing.95 The Zagreb government operated with the juridical reading of the right of self-determination in regard to Croatia and with the ethnonational interpretation in Bosnia. Similarly, Serbia invoked the former in Kosovo and the latter in Croatia and Bosnia. In all these cases, international society accepted the juridical arguments and spurned the ethnonational ones. The political identity of the Serbs in Croatia and Bosnia, Croats in Bosnia and Albanians in Kosovo derived from their ethnicity, not citizenship, but for the outside world the pertinent identity of these populations was that they had been citizens of internationally legitimate states.

If the settlements of the Yugoslav wars, principally those concerning Bosnia and Kosovo, leave doubts as to their wisdom and viabilityÐ as they do in this authorÐ it is perhaps worthwhile to ask in the conclusion whether these doubts should be about the territorial norms, possibly outdated and inappropriate relics 95. The continued robustness of the territorial integrity norm in the Balkans was most recently noticeable during the Macedonian con¯ ict. In its Resolution 1345 (21 March 2001) the Security Council condemned the ``extremist violence, including terrorist activities, in certain parts of the former Yugoslav Republic of Macedonia’’ , observed that ``such violence has support from ethnic Albanian extremists outside these areas and constitutes a threat to the security and stability of the wider region’’ and reaf® rmed the sovereignty and territorial integrity of Macedonia ``and the other States of the region, as set out in the Helsinki Final Act’’. It should also be noted that the resolution as well as the later resolution 1371 (26 September 2001) welcomed the steps taken by the Macedonian government ``to consolidate a multiethnic society within its borders and expressed it’s ``full support for the further development of this process’’. The global preference for the multiethnic state clearly appears to be one reason behind the territorial integrity norm.

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of the Cold War era, or the way they were handled by international diplomacy.

I am ® rmly convinced that the latter is the case. The normative and practical emphasis on mutual consent with respect to international territorial disputes is better than any kind of return to the ``realist’’ pre-1914 right of conquest. When agreement on border changes is missing, territorial conservatism seeks to do away with countries’ belief that resort to military force can settle their quarrel.

It seeks to avert a return to the age when power alone could, and often did, ensure a state’s expansion in size.

Nevertheless, the imperative task of diplomacyÐ indeed its raison d’eÃtreÐ is to examine all possible consensual outcomes, and this was not done in any of the Yugoslav con¯ icts. While there is no guarantee that it would have brought peace, there was never any earnest attempt to ® nd out whether there could be mutual agreement on border changes in Croatia and Bosnia. This option was not even kept as an alternative on the table so as to allow diplomatic ¯ exibility. Instead, recognition of these two republics was rushed through even though mutual agreement had been lacking and even though the recognising countries had been deeply reluctant to get involved militarily should the violence worsen. In his memoirs, David Owen, the Co-Chairman of the Steering Committee of the ICFY until June 1995, complained bitterly that: My view has always been that to have stuck unyieldingly to the internal boundaries of the six republics within the former Yugoslavia . . . before there was any question of recognition of these republics, as being boundaries for independent states, was a folly far greater than that of premature recognition itself. The refusal to make these borders negotiable greatly hampered the EC’s attempt at crisis management in July and August 1991 and subsequently put all peacemaking from September 1991 onward within a straitjacket that greatly inhibited compromises between the parties in dispute.96 One can take exception to this argument by saying that opening the border issue would have bene® ted mostly Serbs (and Croats in Bosnia) who in fact relied more on the use of force than on negotiating a mutually satisfactory solution, But this objection cannot but avoid facing the real source of discord in Croatia and Bosnia. If the dispute was primarily about statehood and borders, and I argued that this was indeed the case, then a territorial compromise should have been seriously explored before granting these states international recognition.

Would not such a compromise in Bosnia, if the Bosnian Muslim leadership could have been persuaded by international diplomacy to think in that direction, have 96. David Owen, Balkan Odyssey, updated edn (San Diego, CA: Harcourt Brace, 1997), p. 34; Owen discusses in some detail (pp. 32± 35) what in retrospect was a very unique proposal of the Dutch governmentÐ at the time in charge of the EC presidencyÐ that the option of boundary changes should be looked at. The Netherlands suggested in this 13 July 1991 document ``a voluntary redrawing of internal borders as a possible solution’’ and pointed out that ``if the aim is to reduce the number of national minorities in every republic, better borders than the present ones could be devised’’ . If the republics were to become independent, the proposal stressed, ``the ® rst principle of Helsinki should be applied, which means that the frontiers of Yugoslavia’ s constituent republics can only be changed `in accordance with international law, by peaceful means and by agreement’’’. One can only speculate what course the events would have taken had the Dutch proposal, introduced less than three weeks after the ® rst shots in Slovenia, not been so promptly rejected by the other EC members on 29 July 1991.

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been better than war, particularly when this war was anticipated so widely? Is not human life more important than unity of a territory, even if that territory is inhabited by diverse and intermingled ethnonational groups? A bargain that could have given each group somethingÐ and if not making all of them happy at least making each more or less equally unhappyÐ would have been preferable to ignoring the claims of some even at the risk of worsening the con¯ ict. The prospects for such an agreement diminished rapidly after recognition, but even then there would have been a moral and legal difference between one-sided international recognition of Bosnian Croat and Bosnian Serb entities against the wishes of the Sarajevo government and a friendly suggestion to the Bosnian Muslims that the mass-scale violence engul® ng the country might be a rather compelling indication that the other two Bosnian peoples do not want to live with them in an independent state and that this must be dealt with politically.

As grim as it may sound to a Western liberal ear, an early compromise on dividing Bosnia, while not bringing the good life of multiethnic society, could have at least prevented the bad life, of which the 1992 ± 1995 war was undoubtedly the worst example.

In a speech during the Dayton negotiations, US Secretary of State Warren Christopher said that the United States and the European Union ``share the conviction that Europe’s post-cold war peace must be based on the principle of multiethnic democracy’’.97 The ® nal peace agreement and the new constitution of Bosnia attached to it, written largely by State Department lawyers, re¯ ect this creed. But what is a uni® ed Bosnia good for when around half of its inhabitants are not even genuinely committed to its existence? James Lyon, the director of the Sarajevo ® eld of® ce for the in¯ uential non-governmental organisation International Crisis Group, concluded just prior to the ® fth anniversary of the peace agreement that ``two of Bosnia’s three ethnic groups actively oppose Dayton and are prepared to wait until the international community withdraws and the agreement can be laid to rest . . . The Croat goal . . . is eventual union with Croatia, while the Serb nationalist goal . . . is eventual union with Serbia.’’ 98 The real problem has not gone away.

If anything, the political future of Kosovo is even more intractable and, again, largely this is due to diplomatic failures. Rather than to exhaust all diplomatic avenues with the Belgrade government, Nato intervened militarily on behalf of the Kosovo Albanians while being against the end they had so overwhelmingly desiredÐ independence for Kosovo. The alliance wanted Kosovo to continue to be part of the FRY but this was in fact the very objective of the Yugoslav forces.

Sharing a key goal with its adversary, Nato could not but undermine its prospects by using force against the FRY. As in Bosnia, far more attention was paid to the symptoms than to the causes of the disease. On the one hand, this is understandable: to spot suffering of fellow human beings is much easier than to comprehend all the underlying issues that might have precipitated it. On the other hand, the gist of the Kosovo conundrum lay not in the Serb repression against the KLA and the civilians in the KLA-held areas or even in the subsequent misery of refugees, reprehensible 97. Warren Christopher, In the Stream of History: Shaping Foreign Policy for a New Era (Stanford, CA: Stanford University Press, 1998), p. 364.

98. James Lyon, ``Will Bosnia Survive Dayton?’’ , Current History, Vol. 99, No. 3 (2000), pp. 111, 113.

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as both of them were, but in the fact that the Kosovo Albanians did not wish to live under Yugoslav sovereignty. What is the long-term solution of the Kosovo problem given that all related UN resolutions proclaim that Kosovo is an integral part of Yugoslavia and the Kosovo Albanians want more than ever out of Yugoslavia? The elimination of symptoms eliminates only symptoms, not the disease. The disease persists even if it remains, for the moment, asymptomatic.