The Break-Up of Yugoslavia and International Law by Peter s> Radan (review)

Abstract

382 SEER, 8I, 2, 2003 Radan, Peter. TheBreak-up ofYugoslavia andInternational Law.Routledge Studies in International Law, 2. Routledge, London and New York, 2002. iX+ 278 pp. Maps. Notes. Appendix. Bibliography.Index. (65.oo. THIsbook deals only tangentially with the subject matter of its title. Rather than a detailed studyof internationallaw and the break-upof Yugoslavia,this is a studyof two aspectsof internationallaw applied in the recognition of new states:the concept of the rightof self-determinationand the development and use of the legal principle of utipossidetis (possession).Radan uses a discussion of these two aspects to challenge the conclusions of the EU Badinter Commission which ruled in a series of judgements, from November i99I to July 1992, that the new statesformed in the break-upof Yugoslaviashouldbe grantedindependence on the basisof theirpre-existingfederalborders. There is really only one chapter that deals with internationallaw and the break up of Yugoslavia.The foregoing chapters deal with three preliminary issues, each dealt with in two chapters: the legal concepts of 'nation' and 'people'; the historical development of the concept of utipossidetis; and the history of Yugoslaviaand the wars of secession. These three issues are dealt with in a highly compartmentalized way, giving the reader the feeling of reading separatepapersratherthan a unitarymonograph. Regardingthe concept of the rightof self-determination,Radan favoursthe 'romantic' definition of concepts such as 'nation' and 'people' over the 'classical'territorially-basedperspective and, rather controversially,seeks to assert that his preference is supported in international law. By process of a complex selection of assorted material culled from legal documentation rangingfrom the I920S to the i99OS he arguesthat internationallaw could be construed to favour a right to secession in cases of discrimination against minoritiesand that statementsunderUN Charterlaw in defence of territorial integrityare not easy to interpretin this area. Of more interest to the internationallegal scholar are the chapters on the development of the principle of uti possidetiswith decolonization in Latin America in the early decades of the nineteenth century and in the very differentcircumstancesin Africain the twentieth. His detailed and interesting survey demonstrates that the principle was used to establish borders where there was pre-existing agreement that they would follow previous colonial administrativeboundaries. The historical material on Yugoslavia highlights that the republics' administrativeboundaries were never the subject of a legal document, that they were designed to prevent secession ratherthan to encourage it, and that there was no thought that they could ever be used as international borders between states, and that if this had been the case then they would not have been agreedto. In the descriptionof the YugoslavsecessionsRadan highlights that the international institutions involved in the disputes over secession, includingthe EuropeanUnion, CSCE/OSCE and UN, all defended the right of republicsto secede within theirinternalfederalborders. The chapter on the BadinterCommission binds the worktogether focusing on the legal misjudgements of the EU in failing to facilitate a negotiated solution to boundary disputes between majorities and minorities within the REVIEWS 383 new states.Radan correctlyarguesthat calling into question the international borders of Yugoslaviawhile regarding internal administrativeboundaries as sacrosanct was contradictory and without any consistent legal defence. He asserts that the Badinter judgements were based on a misreading of international law on several counts: the wrong declaration that the Federal Republic was disintegrating rather than that states were seceding; the misconstructionof therightof self-determinationto readthatfixedboundaries should be maintained; and in regarding that the principle of uti possidetis shouldbe applicablein circumstanceswhere it could only lead to conflict. Rather than a studyof Yugoslavia,thisfascinatingand slightlyeclecticwork appearsto be conceived more in orderto learn the lesson of the Yugoslavcase to address a possible Quebec secession from Canada. Radan's conclusions, that the EU Badinter judgements effectively removed the possibility of negotiations over minority claims, particularly in Croatia and Bosnia, and embroiledthe internationalcommunity in conflictswhere theyeffectivelytook the side of dominant national groups within federal units, are correct. However, his argumentationfallsbetween two stools:in the earlychaptershe is not focused enough on internationallaw in explaining the legal questions, such as the right to self-determination,while, on the other hand, he tends to be too legalistic in his attempt to explain the break-up of Yugoslaviaas bad law-making,in isolationfrom internationalpressuresfor intervention. TheCentrefor theStudy ofDemocragy D. CHANDLER University of Westminster...