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Mutual Recognition of Croatia and Serbia (+Montenegro)
II. Background: Recognition of the Republics in Question by the UN, the EC and Third Countries and their Current Status under Public International Law
A. Croatia
In order to trace, in legal terms, Croatia's path to independence and, finally, international recognition, one has to go back to the 1974 Constitution of the Socialist Federal Republic of Yugoslavia (SFRY), in which `the right of secession' of `the nations of Yugoslavia, proceeding from the right of every nation to self-determination' was implemented. Since there existed no mechanism in the Constitution to exercise the right of secession, Croatia declared its independence on 25 June 1991. Article I of the Constitutional Resolution Regarding the Sovereignty and Independence of the Republic of Croatia7 proclaims Croatia as a sovereign and independent State. The same resolution, which had been adopted by the Croatian Parliament, states that Croatia is to `begin[s] the process of gaining international recognition'. This statement is interesting in so far as it alone cannot initiate the process of international recognition, as it is completely up to third countries to recognize statehood. It therefore has to be interpreted as a signal to third countries demonstrating Croatia's willingness for international recognition, and as a wish to be recognized internationally.
Despite Croatia's willingness, countries were loathe to set a precedent with the recognition of Croatia because of fear of the `flow-on effect for the Soviet scene'.8 On 27 August 1991, the European Community decided to establish a peace conference on Yugoslavia and an Arbitration Committee comprising five Presidents from among the various Constitutional Courts of the EC countries. The Committee became known as the Badinter Committee named after its president Mr. Badinter - President of the French Constitutional Court. Its mandate was to give binding decisions as to the process of dissolution of the SFRY.
In the meantime, Croatia made another appeal to the Member States of the EC and the UN `to establish diplomatic relations with the Republic of Croatia'.9 At the same time, it decided `to recognize the independence and sovereignty of the other republics of the former SFRY on the basis of the principle of mutuality.' Recent undertakings between Belgrade and Zagreb aiming at a mutual recognition show that, up to now, this has been a mere intention without any practical consequences.
On 16 December 1991 the EC Foreign Ministers issued a `Declaration on the Guidelines on the Recognition of the New States in Eastern Europe and in the Soviet Union'10 and a `Declaration on Yugoslavia'.11 They had acknowledged that they could no longer deny the political realities and that they had to react correspondingly.
It is interesting to note that, in the Guidelines, the recognition of the new States was not only made subject to the traditional criteria for the recognition of statehood (which are: permanent population, defined territory, a government in effective control of the territory and the capacity to enter into relations with other States),12 but also made dependent upon `the political realities in each case'. This made recognition a matter of political discretion whereas the traditional criteria only took account of the mere facts, exactly mirroring the current situation.
The development of recognition, from a simple declaration of an ascertainable fact into a tool for political actions, is also underlined by the statement that the Member States `would take account of the effects of recognition on neighbouring States'. Consequently, recognition no longer remains only an issue between the two States in question, but entails a `third dimension' in so far as neighbouring States are to be taken into account. Furthermore, it was stated that `the Community and its Member States will not recognize entities which are the result of aggression.' This can be applied to the Serbian entities in Croatia and we will see in a moment the effects of this attitude.
Following the Guidelines, the Declaration on Yugoslavia made recognition of the Yugoslav Republics subject to various conditions, among them their application to be recognized. Having fulfilled the requirements, on 15 January 1992, Croatia was recognized by the EC and subsequently by many other countries. The whole recognition process ended with Croatia being admitted to the UN on 22 May 1992.
The current status of Croatia under public international law can be drawn from the Opinions (in particular Opinion Nos. 2, 3 and 5) spelled out by the Badinter Committee. These opinions were the basis for the Committee's decision to recognize Croatia. Applying the principle of uti possidetis, Opinion No. 3 held that when the former republic Croatia was in the process of becoming a sovereign State, the former internal boundaries between Croatia and Serbia became frontiers between two sovereign States.
However, this principle could not be applied to the new Serbian entities in Croatia, although they, too, had declared their independence (the so-called `Republika Srpska Krajina'). These boundaries were the result of the use of force and therefore were `not capable of producing any legal effect.'13 Although the Serbian population in Croatia did not constitute a sovereign State they were, however, still afforded the rights accorded to minorities under public international law, including the right to choose their own nationality.
B. Serbia and Montenegro
The determining issue in the question of recognition of Serbia and Montenegro has been the dispute as to whether the former Yugoslavia was in a process of secession or dissolution. Whereas Zagreb's view has been that this was a legitimate process of self-determination leading to the dissolution of the original State, Belgrade has assumed a process of secession, with Serbia and Montenegro being the `continuing State' of the former Yugoslavia. The question behind the dispute is whether the SFRY's assets should be divided equitably between the successor States or whether the `continuing State' is entitled to them.
Serbia expressed its view as early as in 1991 with a statement by Serbia's Foreign Minister that Serbia `is not interested in secession'.14 It is very questionable, however, whether the interests of a State have any influence on determining the process which the SFRY went through. Of course, it was in the other republics' interest, too, to be recognized as sovereign States, but recognition was not due to this self-interest, but, instead, the requirements under public international law and the ones laid down by the EC (see above). Moreover, Serbia has not been interested in being recognized as a new State, because it fears that this would prejudice the decision as to whether it was a `continuing State' of the former Yugoslavia with the other republics seceding from the `core-land'. It therefore did not apply for recognition at all.
On 27 April 1992, the Assembly of the so-called `Federal Republic of Yugoslavia (FRY)' promulgated the Constitution of the FRY, claiming that the SFRY `is transformed' into the FRY, a State comprising two constituent republics, Serbia and Montenegro.15 They stated that they strictly respected the continuity of the international personality and that they undertook to fulfill
all the rights conferred to and the obligations assumed by the SFRY in international relations, including its membership in all international organisations and participation in international treaties ratified or acceded to by Yugoslavia.
Here again, a unilateral statement to take over the rights and duties of the preceding State could not, in itself, determine whether Yugoslavia was in a process of secession or dissolution. An answer was given by the Badinter Committee (Opinion Nos. 1, 8 and 9) which stated that the SFRY was in a process of dissolution, with the six republics being equal successors to the SFRY. The Committee referred to the internationally recognized criterion that `the essential organs of the Federation, ... no longer meet the criteria of participation and representatives inherent in a federal state.'16 As far as Montenegro is concerned, there was also no request for recognition, but, instead, the wish to form the `FRY'.
In summary, the current status of Serbia and Montenegro can be described as follows: two former republics of Yugoslavia comprise one State that has not been granted international recognition.
Serbia, on the one hand, wants to be recognized exclusively as the `continuing State' of the SFRY. The attitude of the international community, on the other hand, follows the Badinter Committee's statement that the SFRY was in the `process of dissolution'. Opinion No. 8 of 4 July 1992, stated that `the process of dissolution ... is now complete and that the SFRY no longer exists.'17 This means that the SFRY no longer has legal personality, something which has major repercussions in international law, e.g. concerning membership in international organisations like the UN. Also, the UN Security Council considered that `the State formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist' and that the new Yugoslavia `cannot continue automatically the (UN) membership' of the old Yugoslavia.18 We shall see later that the practice of the UN and especially the General Assembly does not convey this attitude of break in membership, but that there are various hints of continuity in membership.
7 `Statements on Croatian Democracy and Independence', Croatian Democratic Union, 1991, Preamble.
9 Focus, Special Issue, Belgrade, 14 January 1992; 92, 178.
12 I. Brownlie, Principles of Public International Law (1990) 72; Montevideo Convention on Rights and Duties, Art. I.
13 Opinion No. 3, 3 EJIL (1992) 178 (Appendix).
14 Focus, supra note 8, at 276.
15 UN Document S/23877 of 5 May 1992.
16 Opinion No. 1, 3 EJIL (1992) 178 (Appendix).
18 UN SC Resolution 777 of 19 September 1992: S/24570.
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