The Break of Yugoslavia and International Law - Essay Example

The Break of Yugoslavia and International Law January 4, Introduction The European Union formerly known as the European Community had its intentions and involvement questioned due to its decision to recognize the new states that were calling for their freedom during the Yugoslav crisis. The role played by the Union remains to attract much speculation in what seemed as a failure of the community and going too far in violating the international policies that determine how countries and the union ought to get involved in the functioning of the other. One of the controversial policies that were enacted at the time include the European Community’s policy on conditional recognition of the states which was seen as being there to represent a new mode of expressing the EC security policy-making process. This was the first policy to be made and which was different from the historic state practice and also the international laws. The drafting of the policies that led to the recognition of the states will be discussed in length in this paper as well as the role of advisory opinion on Yugoslavia on the debate of constitutive nature of the recognition process. The essay shall also evaluate the European Community guidelines on recognition and their normative character. Lastly the essay shall address the inconsistencies in recognizing the former Yugoslavian states some of which did not fulfil the Montevideo Convention criteria of statehood. The European Community made a grave mistake by thinking that conditional recognition of the states that were fighting to be recognized could be used to calm the situation at the time. This way, the EC wanted to use conditional recognition as a way of dissuading Belgrade from going on with its method of using violence against the resisting states. Initially, this was supposed to be handled as an internal conflict but the approach changed it to look like an interstate war that called for the intervention of third parties. The European Community had to intervene considering that it is mandated to be involved in such cases. Yugoslavia was formed at the end of First World War when Croat, Slovenian, and Bosnian territories which had been part of the Austro-Hungarian Empire came together to form the Serbian Kingdom (U.S. Department of State Press). The Break-Up of Yugoslavia In the creation of countries and new states, there are various considerations that need to be put in place. First, it has to be established that the new state will have the capability of governing its population and securing its territory. However, in the breakup of Yugoslavia which happened at the end of the cold war at a time when the Soviet Union was collapsing worked to show that such considerations were not put in place and there were serious drawbacks in the use of international laws to govern such a serious exercise. The European Community whose role was criticized in the breakup was seen as supporting the formation of new countries as long as they pledged to commit to govern themselves well, promote intentional peace and security and protect human rights as was in the case of Yugoslavia. However, it is later realized that the new states are not in a capacity to fulfil such commitments and the international community is left with a more serious role of handling the warring nations. In the formation of new states, the correct legal and political processes needs to be followed to ensure that the new states will have or will be in a capacity to attend to the commitments that come with the responsibility of being a sovereign country. Countries are governed by constitutions. In most cases, and in situations where there is haste in the drafting of the constitution, the same is not adhered to and the result is that the country may slowly drift back to war. It is known that in the process, and in a case of international relations, the states that form the international community needs to be respected and accorded the rights and the space they need to run their own affairs. Ethnic animosity was one of the major reasons that caused the upheavals in the country. Cultural diversity played a major role in the animosity witnessed in the country (Spenser, 1998). However, after World War II, the country had a stint of peace under Tito’s rule. The Kingdom of Serbs, Croats and Slovenes was created as a result of the Paris Peace Conference at the end of World War I. This was meant to give the people a common identity that would be used to have a peaceful nation. Tito was tactful in ensuring that peace prevailed during his tenure in leadership. He often ordered the republicans to follow the federal laws as a way of unifying the nation and ensuring that there was no break up that would lead to a civil war. In the 1980s, there was bitter rivalry as a result of the cold war and the communist ideology was gaining increased criticism all over Europe. The crumble of the Soviet Union served as another factor toward the tension that grew in Yugoslavia. In 1980, Tito died. This immediately led to weakening of the ties in the Yugoslav state as he acted as the unifying factor between the different communities. There was a serious economic crisis in the 1980s that was attributed to the communist ideology that was held in the country. Oil shocks, the 1980s global recession and an increased foreign debt were also among the factors that led to the economic crisis witnessed at the time. Slovenia, which had a better economy therefore moved forward to change the situation. The economy however continued to decline due to the rampant conflicts between reformers and conservatives. What followed was a series of events and violent killings that led to the breakup of the united nation. Recognition and State Creation in International Law Statehood, or the processes that are associated with the formation of a new state are attached to the responsibilities that come with it. The International Legal system plays a major role in the formation of new states as it is mandated with the responsibility of determining whether the plea to form the new states is founded on genuine reasons and whether the new state will enhance the achievement of the objective such a peace. The Declaratory Theory explains that any entity can become a sovereign state if it satisfies four empirical criteria. The 1933 Montevideo Convention on the Rights and Duties of States defines the criteria to be used in determining whether an entity can be promoted to become a state. In the criteria, the state as a person of the international law should have a permanent population, a defined territory, a government and the capacity to enter into relations with other states before it can be allowed to form an independent state (James, 1977). However, it has been argued that various entities achieve the criteria before they are declared to be independent states and so the international community has to work towards their recognition as independent states. Going deeper in the criteria, the population in reference, should be permanent and also significant. This is also defined as a stable community which will form part of the population at any given time. States are territorial entities and so if a given entity, or community is fighting or pushing to be recognized or to become a state it must possess a permanent territory. The amount of territory required for such is however not definite. This criteria is straightforward. However, for an entity to have a territory, the demarcations or the boundaries that were initially there needs to be reconsidered. This is the tricky part that calls for the establishment of new boundaries. In most cases, or in situations where a resolution is not reached upon the declaration of the new state is postponed until such disputes are resolved and a potential solution reached upon. At this moment the NATO had a good time of taking over the situation in the name of peacekeeping (Mahairs, n.d) For a state to possess a sense of internal stability, it is important for it to have a government. The requirement does not call for any particular form of government but just a government that will be used to ensure that there is harmony and peace in the population. Lastly, the new state has to engage in various international relations with countries. For instance, such a country will need to engage with other countries in business and such. This capacity to enter into international relations consists of the constitutional competence of the state as stated in its constitution to engage in such. Each state is governed by a constitution which is the legal document that rule the state. It defines the powers of various organs of the government and their roles upon the nation. However, in Yugoslavia, since the promulgation of the constitution in 1974, there was increased from the Serbs who were crying foul (Zvonimir, & Milan, 1994). The Dissolution of Yugoslavia The need to secede from Yugoslavia was expressed by various states in the early 1990s. This was after the fall out of the Soviet Union. However, the Declaration on Yugoslavia made it clear that all the states which wished to be recognized had to notify the European Community by December 1991. There were guidelines which had been set forth governing the formation of the new states and the new states had to commit to them as they were presenting their request to the European Community. To add on that. All those states were required to pledge their support to towards the UN Security Council and the Conference on Yugoslavia. In the bid to have the bid accepted, Germany which had tried to campaign for the recognition of the states and even went a step further to recognize Croatia and Slovenia as sovereign states. This drew serious criticism from the United States and the United Nations which was calling for the following of the correct protocol to have the states recognized. However, the European Community followed Germany’s way and recognized the two states despite the fact that they had not been assessed fully. What followed was the recognition of Bosnia-Herzegovina by the EC. This pressure made the United States to yield and recognize the three countries as having met the criteria to be recognized as states. The criteria used however remained unknown. The Change in Criteria The criteria used in the recognition of the states was different from the one set during the Montevideo conference. Legal experts noted that the new states barely satisfied the criteria that had been proposed towards the same. The criteria set before required each of the states to have a defined territory which is the source to most of the civil disputes that arise in peaceful countries (Glaurdic, 2011). It was also in controversy whether the countries had a permanent population as indicated in the criteria, an effective government and whether they were in a capacity to enter into international relations. Immediately after their formation, deployment of peacekeepers was effected to cover up for the fact that they failed to have stable governments and the rampant fights over the territories could have led to the split or the emanation of a new war. Two states, Bosnia-Herzegovina and Georgia were not settled at the time with Georgia still experiencing serious turmoil that could not allow it to be a member of the CIS. To show the real state of the situation, immediately after the United States recognized Georgia as a state, the then president was ousted by rebel forces. This happened in early 1992. This led to the installation of Eduard Shevardnadze to be the new president to steer the new state to realize the objectives it had while soliciting for the rights to become a state. The unrest in the country still prevailed. The government that was formed was quite weak and this led to Georgia joining the CIS 24 months after it was recognized as a state. This acted as proof to the drawbacks in the process that was used to recognize the new states as in the traditional laws. In the previous laws that had been set and which were supposed to have been used in determining and recognizing the new states, the countries, though not forced to have any type of government, were to have an effective government that would see it running. With the fragile governments seen in countries like Georgia, the need to observe the laws and use the criteria set to recognize them. Failure to have them called for international bodies such as NATO in peace keeping missions and the continuing of the war in the region (Williams. & James, 1996) The States after the Split It was supposed that the conditional recognition of the states by the European Community and other countries such the United States would serve to calm the state and restore peace in the splitting country. However, it emerged that by not observing the criteria that had been set before, it was basically impossible for peace to be realized. The toppling of the fragile government that had been formed in Georgia was one of the effects of the haste process that was seen as flawed and criticized by legal professionals due to bending the rules that would have seen the process slowed but the correct results being achieved. The security state in Yugoslavia remained to be pathetic, a condition that affected Bosnia-Herzegovina. The state in Bosnia-Herzegovina was too bad. The war that persisted led to Vance-Owen deciding and proposing that the only solution that would bring peace in the warring nation would be if the country was divided into ten cantons which would be determined by the ethnic communities found in it (Declaration on Yugoslavia 1992). However, this would not be in line with the models that had been set to determine the formation and the recognition of new states. In the models, no state was supposed to be recognized if there was aggression in the process that solicited for its recognition. Neither was any state supposed to be recognized if it lacked territorial integrity. These problems led to the government lacking the control over the population and also over the land that it had fought so hard to be recognized. However, despite all the flaws witnessed, Bosnia was accepted as a member of the European Community which rather became the European Union (Christian, 1998). The criteria that was supposed to be followed was not followed but a substitute used. However, the country was embarrassing the EU formerly the EC and so action had to be taken (Herman & Peterson, 2007). The Nature of the New States Due to the fact that criteria used to recognize the new states was bent, the new states lack the sense of independence that was initially the core of the fights seen in various countries. The international bodies such as the European Union have to be consulted now and then to solve disputes that arise either due to the fragility of the governments or the incapability of the same to handle various serious issues affecting the people. It is ironical that instead of having the qualities outlined that is having an effective government, a permanent population, a defined territory and be in a position to enter into relations with other countries before the states were recognized, the same was trying to be found after they had been formed. This was seen as the major drawback by the European Community in following the criteria set in Montevideo and which needs to be followed if a similar case is to be witnessed in the future. On one occasion on 11 January 1992, Lord Carrington reporting on the self-recognition issue said that the Serbs in Croatia and Herzegovina could not be recognized as a state due to the implications of the international law on self-determination (Radan, 2004). The countries ought to have achieved the set guidelines and the EC should not have entertained any as that would simply call for more problems such as the ones seen when they did not have effective governments to control the population (Windell, 2004). Bibliography B. Zvonimir, & J. E. Milan. Croatia between Aggression and Peace. Zagreb: AGM Publications, 1994. Available at. C. James. The Criteria for Statehood in International Law. British Year Book of International Law. New York: Oxford University Press. 1977, pp. 93-182. D. J. Williams. & A. S. James. Faultlines: UN Operations in the Former Yugoslavia. In Peacekeeping, American Policy, and the Uncivil Wars of the 1990s. New York: St. Martin Press. 1996. Declaration on Yugoslavia 1992. International Legal Materials 31:1485. E. Mahairs. The breakup of Yugoslavia. A Review of the Hidden Agenda, U.S./NATO Takeover of Yugoslavia. New York: International Action Center. Online at. E. S. Herman, & D. Peterson. ‘The Dismantling of Yugoslavia (Part I)’ A Study in In-humanitarian Intervention (and a Western Liberal-Left Intellectual and Moral Collapse. Vol. 59, Issue 5, 2007. H. Christian. The Admission of New States to the International Community. European Journal of International Law, Issue 9. Pp. 491-509. 1998. J. Glaurdic, ‘Review of the Hour of Europe: Western Powers and the Breakup of Yugoslavia. London: Yale University Press. 2011. J. Windell. The Breakup of Yugoslavia and Premature State Recognition. 2004. Available at. M. Spenser. The Breakup of Yugoslavia, Chapter 7 of Separatism: Democracy and Disintegration. 1998. P. Radan. Break-up of Yugoslavia and International Law. London: Routledge, 2004. U.S. Department of State. Office of the Historian. Milestones: 1989-1992. The Breakup of Yugoslavia, 1990-1992. Available at. Read More