The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples

The Role of Arbitration in Europe

States might also agree to entrust the task of deciding on frontier changes to an arbitration tribunal, the proceedings of which would be inspired less by legal considerations - which could only result in a confirmation of existing frontiers -, than by equity or by general norms reflecting the States' common agreement.

This was not the role given to the Badinter Committee, whose mandate has been restricted to the application of the law in force. It did not, however, draw back, in the arguments which it developed, from opening doors and offering suggestions, nor from opening new horizons even though prospective considerations were absent from its opinions; as is suitable for a jurisdictional organ. Rejecting both a formal application of law, which would have frozen the situation by polarizing positions, and led to the application of adventurous visions, deprived of a grip on reality, the Committee chose a middle path; without `showing-off', it adopted a line which might inspire the decisions which only politicians are able to take.

It would be foolish to think that in such difficult circumstances which at present exist in Yugoslavia, lawyers, solely by virtue of words, be they wise and legal words, might be able to re-establish peace, map frontiers or determine the aspirations of the people. All that they might do, and that is already a great deal, is to contribute to allay the tension and to suggest solutions, which they might also aid in putting into effect if and when they are finalized.

The Yugoslavian affair also demonstrates that one would be well-inspired to initiate structures designed to prevent conflicts from degenerating rather than call in the lawyers, like firemen, to dampen a raging fire. Yugoslavia will one day regain peace because there is no such thing as an infinite war. Then, the existence of an impartial body, charged with resolving the inevitable conflicts which remain or might arise between the Republics would be even more important than today.

Such a mechanism has an essential role to play if one wishes to prevent conflicts which might erupt anywhere in Europe - in particular among States which have replaced the former Soviet Union. The European States must demonstrate their resolve to overcome the contentious issues opposing them solely on the basis of law; to this end, creation of a European Court of settlement and arbitration is today absolutely necessary.

Through its balanced and impartial decisions, the Arbitration Committee of the Peace Conference on Yugoslavia has furnished proof that such an organ can provide a great service. This example must be recognized and used as a building block in the search for mechanisms to resolve ethno-territorial conflicts.

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