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

Alain Pellet ¹

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On the 27th of August 1991,² the Community and its Member States, at the same time as convening a peace conference on Yugoslavia, created an Arbitration Committee. The Committee was chaired by Mr Robert Badinter, President of the French Constitutional Council, and was furthermore comprised of the Presidents of the German and Italian Constitutional Courts, the Belgian Court of Arbitration and the Spanish Constitutional Tribunal.

The mandate given to the Committee was somewhat vague. At the outset it was envisaged that the Committee would rule by means of binding decisions upon request from `valid Yugoslavian authorities'. Although no consultative procedure was formally established, the Committee was in fact called upon to give one opinion at the request of Lord Carrington, President of the Peace Conference (Opinion No. 1); similar requests were subsequently made by the Serbian Republic, using the Conference as intermediary (Opinions Nos. 2 and 3) and the Council of Ministers of the EEC (Opinions Nos. 4 to 7).

The final four opinions were delivered on the 14th of January 1991. They were concerned with the question of whether the Republics of Croatia, Macedonia and Slovenia, who had formally requested recognition by the Community and its Member States, had satisfied the conditions laid down by the Council of Ministers of the European Community on the 16th of December 1991. The terms of this `examination' were relatively indulgent and the Committee ruled that two Republics, Macedonia and Slovenia, fulfilled all the conditions. In the case of Croatia a reservation was made in relation to the rights of minorities. The request for recognition made by Bosnia-Herzegovina was, in the absence of a referendum, refused.

Those opinions concerning recognition were dealt with widely in the media. Less attention was paid to the other three. Yet the latter might be of great import in the long term, extending beyond the unfortunate turn of events in Yugoslavia. This is particularly true in relation to Opinions Nos. 2 and 3.

The primary Serbian question concerned the right of the Serbian populations in Croatia and Bosnia-Herzegovina to self-determination. The second dealt with the delimitation of internal borders, in other words the identification of frontiers between the Republics. Although the Committee gave two distinct opinions in response to the questions posed, it was made clear that these two questions, as well as the queries addressed in its first Opinion, delivered on the 29th of November 1991, were closely related to each other. In its November Opinion, although the Committee displayed little originality in observing that Yugoslavia was `engaged in a process of dissolution', it made interesting considerations.

This group of three opinions invites a reflection on three essential points: the scope of the self-determination principle as it is applied in particular contexts, with a special focus on decolonialization; the relationship of this principle to another of equally fundamental import, that of the stability of frontiers; and finally, the general role which an international arbitration body might play in such problems.

The Future of Self-Determination

The United Nations Charter extends the right of self-determination to all peoples. However, it neither defines what is to be understood by the word `peoples', nor does it lay down rules as to how this right is to be exercised; a right which so far has been successfully invoked by colonial peoples only.³ The Badinter Committee was thus correct to assert that `in its present state of development, international law does not make clear all the consequences which flow from this principle'. Nevertheless, through its Opinions it has contributed to a more precise definition of its attributes.

It is not insignificant that the Court, without an express statement to that effect, appeared to link the rights of minorities to the rights of peoples. This shows that the notion of `people' is no longer homogeneous and should not be seen as encompassing the whole population of any State. Instead of this, one must recognize that within one State, various ethnic, religious or linguistic communities might exist. These communities similarly would have, according to Opinion No. 2, the right to see their identity recognized and to benefit from `all the human rights and fundamental freedoms recognized in international law, including, where appropriate, the right to choose their national identity'.

The States are thus informed: these are `imperative norms' binding all subjects of international law, and, which could one day be applied to protect, for example, the rights of Gagauz or Chechens without entailing the break-up of Moldavia or Russia. One dare not even consider Corsicans or even Basques...

More importantly, the Committee noted that Article 1 of the two 1966 International Covenants on human rights establishes that `the principle of the right to self-determination serves to safeguard human rights'. This signifies that `by virtue of this right, each human entity might indicate his or her belonging to the community (...) of his or her choice'. This might appear superfluous, but is in fact fundamental: it means that each and every man or woman who calls upon this right might choose the group to which they belong.

But Law is not always the `best school of imagination', as suggested by Jean Giraudoux. In relation to its jurisdictional functions, the Committee did not fully develop the consequences which might flow out of its analysis. It did, however, open up an interesting direction of thought in suggesting that the States concerned might accord to Serbs in Bosnia-Herzegovina and Croatia, if they so desired, the nationality of their choice (in other words: Serbian nationality). One might thus suggest a distinction between `nationality' and `citizenship' similar to what is provided in the Treaty on European Union signed in Maastricht.

Even if solutions applicable in the European Union are not easily transposible to Central Europe or to the former Soviet Union, they remain a fertile inspirational source. The ultimate objective would be to allow those persons who so wish to, to declare themselves as Serbs while retaining certain civil and political rights in the territories of Bosnia-Herzegovina and Croatia - for example the right to vote in local elections - without thereby questioning the sovereignty of the State. Such arrangements would have the immense merit of guaranteeing the rights of peoples - and the individuals of whom they are composed -, while avoiding the fragmentation and weakening of States.

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1 University of Paris X and IEP (Paris), Member of the Commission of International Law of the United Nations.

2 Extraordinary Meeting of the Foreign Ministers (Brussels, 27 August 1991), Declaration on Yugoslavia.

3 Cf., to this point the commentaries on Arts. 1(2) and 72, Cassese and Bedjaoui, in J.P. Cot and A. Pellet (eds), La Charte des Nations Unies (2nd ed., 1991).

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