Prof. dr. Ivan Kristan
University of Ljubljana

The Right to Self-Determination
The case of Yugoslavia

I. Origin of the Right to Self-determination

The Right of Self-Determination in the history of modern statehood can be followed through historical documents and political actions since thirteen British Colonies in 1776 have separated from Great Britain and declared their independence.

The Declaration of Independence (The Unanimous Declaration of the Thirteen United States of America) was in modern history of statehood first formal document on the constitutional level proclaiming strict demand to the separation.

Introductory paragraph of the Declaration reads: »When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the cause which impel them to the separation.«

After having listed the sufferance under the King of Great Britain and the injustices caused by him the authors of the Declaration have in its last paragraph declared full independence:

»We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and right ought to be free and independent states...«

II. Collective and individual right

Self-determination as a political principle has a double nature: on the one side it is an individual right (freedom) and on other side it is also a right (freedom) of people (of a nation) to decide on its own destiny. From this point of view it is important the mutual connectedness of the individual Self-determination (the right of an individual) and the collective Self-determination (the right of a nation, of the community).

The Right to Self-determination became due UN activity a collective right of a nation and a right of individual.

When Thuerer says the American independence being a prototype of the right of self-determination in the meaning of secession (separation), he adds that the secession was not founded by anti-colonial or national reasons but for the protection of an individual.

The Right to Self-determination as a collective right of the nation is gaining - probably under the influence of the discussions about the universal character of this right - a new characteristic from the standpoint of the mutual correlation of the right of self-determination and other fundamental rights: they consider the Right to Self-determination being a precondition for the realization of all fundamental rights.

III. Democracy and Self-determination

The Democracy and the Self-determination are close linked-up. Self-determination without Democracy couldn't exist, because Self-determination is nothing but an eminent democratic act, nothing but realisation of a democratic essence.

The idea "consent of the governed" is of principal importance. This idea became a principle for the territorial changes between the states: at each territorial change there should be assured a participation in decision-making of the involved people (nation) or entities. This democratic principle found its expression in both the American declaration (1776) and French Declaration (1789).

Kaspar Lang put the democracy as a leading idea of the philosophy of federalism: democracy needs federalism; federalism needs democracy.

IV. The International conception of the Right to Self-determination

International conception of the Right to Self-determination founds its place first in the UN Charter. Later it was elaborated in several documents of the UN, particular:

The Right of Self-determination was first dedicated to the abolishment of colonialism.

The Right to Self-determination was first dedicated to the abolishment of colonialism. This is to see in the Statement, that the Right to Self-determination is representing moral, political and legal foundation of anticolonialism. But the Declaration from 1960 is important for further development to Self-determination in two sense: first, because it indicates the linkage between the Self-determination and the Human Rights, and second, because it gives a clear definition of the Right to self-determination.

The Declaration on the Granting of Independence to Colonial Countries and Peoples states, that the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental rights. Through this assertion of the anticolonial declaration the Self-determination got a new dimension: besides the political and legal aspect it got an inherent humanitarian element of fundamental Human rights. For all modes of anticolonial actions this is a very important step foreword.

From another side the anticolonial declaration gives a definition of the Right of Self-determination: "All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."

The linkage between the Right of Self-determination and the fundamental Human rights - for the first time clear expressed in the anticolonial declaration - got its confirmation in both International Covenants on human rights (Covenant on economic, social and cultural rights; Covenant on civil and political rights) from 1966.

Three important points gives the Article I of the International Covenant of civil and political rights (identical is the wording of Article I of the Covenant of economic, social and cultural rights):

Most comprehensively the self-determination is elaborated in the Declaration of seven principles of international law from 1970.

Among seven principles, solemnly proclaimed by the UN General Assembly, for this paper "The principle of equal rights and self-determination of people" is important. At least two parts of this seventh principle should be cited:

These two quotations clearly show the whole contents of the right to self-determination in general sense and besides that in the second quotation there is given a definition of political self-determination.

For international conception of Right to self-determination it is of decisive importance the fact that the General Assembly solemnly declared, that the principles of the UN Charter, which are embodied in this Declaration "constitute basic principles of international law".

V. Internal and external Self-determination, the right to secession

Self-determination has its internal and external dimension.

Internal Self-determination signifies the enforcement of nations will considering its political status and its political, social and cultural development inside the existing state.

External dimension of Self-determination means accomplishment of the political status outside of the existing state. So the external self-determination means the right to secede.

Both dimensions of Self-determination are important, but it is obvious that the right to secede as a mode of external self-determination is essential, immanent part of the Right to Self-determination. Without the Right to secession there can be no Right to Self-determination, because it cannot exist without its immanent component part.

Secession is an emergency exit, it is a mode of self-help of a nation if its Right to Self-determination is being denied or if cannot realize all possible degrees and modes Of internal Self-determination.

Original sense of the Right of Self-determination that corresponds to American Declaration of independence 1776 is actually the Right to secession. It is being said that the American Declaration of independence is a prototype of Self-determination in the meaning of secession.

Similar consequence follows from international law, before all from the Declaration of seven principles of international law 1970: establishment of an sovereign state is impossible without the right to secede.

VI. The Theory of consumption of the right to Self-determination.

In connection with denying the Right to secession it should be mentioned the Theory of consumption of the right to Self-determination.

Two Serbian Academicians – Radovan Lukić and Jovan Djordjević – made clear statement advocating this theory in connection with Slovenian constitution. They both stated that Yugoslav nations had the right of Self-determination with the right to secession before formation of the Yugoslav state, but entering in Yugoslavia they have consumed this right.

Theory of consumption is not acceptable neither from theoretical nor from empirical point of view, namely how Yugoslav federation was built and how the first Yugoslav constitution was adopted.

From theoretical point of view this theory is not acceptable because the Right of Self-determination, if it can be used only once, it ceased to be a general right or a principle. No fundamental right exists to be used only once.

The Theory of consumption of the Right to Self-determination with the right to secession is contrary to the trends in understanding the Right of Self-determination in the context of the fundamental human rights, mentioned above.

Looking from standpoint of the American Declaration independence the Right of self-determination is not a right to be used only once, because whenever "a long train of abuses and usurpations" appears there is the right to alter the system of government or to secede.

In international law the theory o consumption is neither accepted. There are clear standpoints that the Right to Self-determination is a permanent, inalienable and repeatable right: actually this is a repeatable act.

Yugoslav federation was built up explicitly on the basis of the Right of Self-determination including the Right to secession. The historical events and facts about demanding and realizing the Right of Self-determination from the pre-war Kingdom of Yugoslavia (established 1918), through national liberation struggle (1941-1945) to the Constitution SFRJ 1974 are notorious.

In connection with Theory of consumption it is important that the Constitutional court of Yugoslavia also refused this theory. Namely the Constitutional Court in January 1990 refused proposal of the judge reporter for the assessment the tenth constitutional amendment to the Slovenian constitution (adopted among other amendments 1989), which stipulated the Right to Self-determination of Slovenian people, being contrary to the Constitution of Yugoslavia (SFRJ).

VII. Hesitation in acknowledgement the Self-determination.

There was after the fall of Berlin Wall and (expected) collapse of the Soviet Union (SSSR) towards the Self-determination in the case of Baltic states and in the case of the Socialist federative republic of Yugoslavia (SFRJ) a simultaneous attitude of the international community, before all of the United States: they have - if not quite denying the Self-determination - strong hesitated to accept it.

Western European governments and United States exercised pressure to preserve unity of Yugoslavia. Their pragmatic reason was that they didn’t know, what consequences the break up of Yugoslavia could have for the balance of power and for peace in Europe, they didn't know if this example could cause the break up of Soviet Union a. s. o.

This attitude of western countries was wrong. It would be wiser to support a peaceful reform of Yugoslavia on the basis of the Right of Self-determination then to permit (or even to support?) use the violence or encourage the national intolerance to preserve the unity of Yugoslavia. It is possible to put a question if another attitude of western countries and of USA would prevent the horrible war in Yugoslavia, ending with Dayton peace, signed in December 1995.

Douglas Seay, American policy analyst, gave his observation of this western attitude to Yugoslavia crisis: "The Bush Administration and most West European governments oppose the break-up of Yugoslavia out of a fear of instability. This attitude probably is a relic of the Cold War era, when it was assumed, correctly, that a disintegrating Yugoslavia would be a tempting target for Moscow. Today, however, Yugoslavia’s integrity is of little strategic importance to the West. Even if stability of Yugoslavia were in Western interests, it would not be achieved by the West backing the present regimes coercive attempts to hold the country together. Stability only can be established by the self-determination of Yugoslavia’s constituent republics, be it through complete independence or a renewed federation of democratic republics."

Significant was the hesitation to acknowledge the Self-determination in the case of Baltic states, because there was principally different situation in the Baltic states (Lithuania, Latvia and Estonia) and in the SFRJ.

In Baltic republics the issue was not Self-determination but reestablishment of independence being lost on the basis of non-aggression treaty between Nazi Germany and Soviet Union (SSSR) 1939, which set the stage for Stalin's annexation of the Baltic states the following year.

When after falling the Berlin-Wall the Baltic states in 1990 reclaimed their freedom from the collapsing Soviet Union and when they declared anew their independence, leading western countries were hesitating a pretty time before they formally acknowledged the reestablishment of independent Baltic states being abolished fifty years ago.

When Soviet State Council, presided by Mikhail Gorbachov, on 6 September 1991 acknowledged the independence of Lithuania, Latvia and Estonia the way for realization of the Right of self-determination was opened.

VIII. What was the reason of the collapse of Yugoslav federation (SFRJ)?

The central issue was different attitude to the concept of federation being enforced in the SFRJ Constitution of 1974. It is to say, that in this constitution was federal principle in favour of independent status of federal units (republics) reached the highest level since the first constitution of 1946. Serbia was not satisfied with this conception and advocated strong centre, actually this was a concept of unitarian federation. So Serbia succeeded with its initiative that the federal Constitution from 1974 was changed 1988. In Slovenia was to found critical opinion about this change - it was treated as a degradation of the sovereignty of Slovenia.

Dissatisfaction with federal constitutional amendments from 1988 caused in Slovenia an activity against the centralisation on federal level. This attitude found its expression 1989 in the group of amendments to the Slovenian Constitution from 1974, trying to preserve a relative independent status in the federation. These Slovenian amendments caused very strong negative reaction in Belgrade. In the centre of the critics was before all the amendment No. X. on the Right of Self-determination of the Slovenian people (nation).

To the Slovenian assembly there was one day before its session addressed a firm demand from the federal authorities and of Central committee of the Party (it was the strongest political pressure against Slovenia until then) not to adopt the proposed constitutional amendments: Slovenian assembly didn't follow this demand and adopted all proposed amendments.

So the crisis of Yugoslav federation began to ripen. There were still some efforts to reconcile the opposite views on conception of federation but no one of them succeeded. By Slovenia and Croatia there was elaborated a concept of reorganization of the federation into a confederation. Serbia decisively rejected this proposal.

IX. Secession or dissolution?

So in several republics (federal units) were made steps to reach their independency.

The Republic of Slovenia organized on 23 December 1990 a plebiscite (referendum): in favour of independent Republic of Slovenia voted 88,5% of all registered voters.

This was the basis for further activities. One of these was the proposal for consenting disunion of SFRJ, adopted by Slovenian Assembly on 20 February 1991 in a form of Resolution. Unfortunately this proposal was without expected effect. In that time Miloљević as powerful leader of Serbia was not ready to accept peaceful dissolution of Yugoslavia. He planned to use even armed force to preserve Yugoslavia made after his conception.

Final decisions about the independency and constituting their independent states were adopted in all republics in 1991 and 1992 (Slovenia on 25 June 1991; Croatia on 25 June 1991; Macedonia in September 1991; Bosnia and Herzegovina on 14 October 1991; Serbia and Montenegro on 27 April 1992, establishing the Federative Republic of Yugoslavia).

In the process of break off of Yugoslavia (SFRJ) Serbia tried to enforce its standpoint that four federal units (republics) - Slovenia, Croatia, Macedonia and Bosnia and Herzegovina – seceded from the SFRJ. The aim of this assertion of Serbia was to reach the acknowledgement of his theory that the SFRJ exists further despite missing four of previous six component republics, now being composed only of republics Serbia and Montenegro. Through that formula Serbia with Montenegro wanted to reach the status of automatic succession after SFRJ.

The Arbitration Committee (Badinter Commission) rejected this assertion of Serbia and stated that in the case of SFRJ there is no secession but dissolution. The process of dissolution of SFRJ began on 29 November 1991 and it was completed on 4 July 1992. All new independent states arisen from SFRJ have equal status of state successor after the SFRJ. This new states (Bosnia and Herzegovina, Croatia, Macedonia, Slovenia, Federal republic of Yugoslavia) settled main problems of succession in Agreement of succession, signed in Vienna in June 2001.

 

ПРАВО НА САМООПРЕДЕЛЕНИЕ
 Пример Югославии

И. Кристан
Профессор Университета Любляны

Резюме

В докладе проф. Ивана Кристана на примере Югославии исследуются вопросы, связанные с правом на самоопределение. Автор прослеживает развитие института самоопределения, начиная с провозглашения независимости тринадцатью британскими колониями в Америке и считая Декларацию о независимости Соединенных Штатов Америки первым документом, который на конституционном уровне закрепил право на отделение.

По словам автора, «согласие управляемых», т.е. согласие заинтересованных народов, наций, населяющих определенную территорию, имеет принципиальное значение для осуществления территориальных изменений и, следовательно, для осуществления права на самоопределение. В работе исследованы различные аспекты (внутренний и внешний) права на самоопределение. Отмечается, что внутреннее самоопределение выражается в том, что борющиеся нации и народы рассматривают свой политический статус, а также политическое, социальное и культурное развитие в рамках существующего государства, в то время как внешнее самоопределение предусматривает установление политического статуса вне рамок существующего государства, следовательно, внешнее самоопределение подразумевает право на отделение (сецессию). Право на отделение (сецессия) является составной частью права на самоопределение, без которого невозможно представить существование последнего. Право на самоопределение в смысле Американской декларации о независимости 1776 года означает именно право на отделение (сецессию).

Далее автор подвергает критике теорию «исчерпания (лишения) права на самоопределение» и, в частности, позицию сербских юристов Радована Лукича и Йована Джорджевича, которые отстаивали точку зрения, согласно которой югославские республики обладали правом на самоопределение, которым они воспользовались, создав Югославию, после чего, соответственно, лишились его, отмечая, что если правом на самоопределение можно воспользоваться лишь один раз, то оно перестает являться общим принципом или нормой права. В доктрине международного права данная теория никогда не признавалась. О непризнанности последней свидетельствует и приведенное автором решение Конституционного Суда СФРЮ 1990 года, в котором Суд отверг предложение судьи-докладчика признать десятую поправку Конституции Словении, констатирующую право словенского народа на самоопределение, как не соответствующее Югославской Конституции.

В заключение автор совершает краткий экскурс в историю распада Югославии, подвергая особому исследованию вопросы правопреемства. В работе, в частности, рассматриваются попытки СРЮ (Сербии и Черногории) на первом этапе распада Югославии представлять себя единственным правопреемником СФРЮ и выступать от ее имени. Однако Арбитражный комитет (Комиссия Бадинтера) отверг данное требование СРЮ, установив, что в случае Югославии имело место не отделение, а расчленение, и, соответственно, все образованные после распада Югославии государства имеют одинаковый статус государств-правопреемников СФРЮ.