Vidmar’s Democratic Statehood Thesis in Light of the Yugoslav Dissolution

Jure Vidmar’s Democratic Statehood in International Law is on the short list of recent works – along with James Crawford’s magisterial 2006 second edition of The Creation of States in International Law and Mikulas Fabry’s 2010 Recognizing States: International Society and the Establishment of New States Since 1776 – that provide up-to-date, systematic and authoritative coverage of state creation and recognition in the international order. The book caps its author’s series of substantial contributions to the literature on this topic.

Vidmar’s treatment of statehood controversies is distinctive in invoking the enhanced role of democracy (or something going by that name) in the international normative order. Ever since Thomas M. Franck’s 1992 assertion of an “emerging right to democratic governance,” scholars have sought to assess whether and to what extent international law mandates adherence to democratic standards within (notionally “sovereign”) political communities. The democratic entitlement claim has straightforward relevance to determining whether a given institutional apparatus has legal standing to speak as the government of a state – for example, in the wake of a coup d’état – as opposed to determining whether a territorial entity has the legal status of statehood. Foreign states and intergovernmental organizations might, at least in principle, condition a putative government’s standing to represent a state – including for the purpose of ascertaining the validity of consent to presumptively-unlawful foreign intervention in the territory – on the outcome of elections certified as “free and fair.” As is generally noticed, international practice on this point is inconsistent, and not all scholars are satisfied that democratic criteria can be specified in a manner that transcends principled controversies about democracy’s essential meaning. Nonetheless, the existence of twilight does not refute the distinction between day and night, and substantial international practice can be attributed to a collective perception of particular regimes’ lack of democratic legitimacy.The democratic entitlement’s application to statehood questions is necessarily more indirect. In resolving statehood claims, as Vidmar notes (p. 243, quoting Ivor Jennings), “the people cannot decide until somebody decides who are the people.” The vexing cases are precisely those that turn on the “majority of whom?” question. (Should the question of Northern Ireland’s status be decided by the population of the Six Counties? Of the island of Ireland? Of Great Britain and Northern Ireland? Of the British Isles?) Vidmar makes no claim that democracy, however conceived, provides an overall solution to such riddles. But he does posit an increased relevance of democratic considerations to the resolution of statehood controversies.

This increased relevance of democratic considerations comes at the expense of a traditional approach that I have elsewhere characterized as “trial by ordeal.” Long after – and paradoxically, as a concomitant of – the collective renunciation of cross-border uses of force, the international system continued to dignify the internal use of force as a basis for setting the terms of territorial public order. Invocations of the 1933 Montevideo Convention – best read in conjunction with a contemporaneous Latin American treaty, the 1929 Civil Strife Convention (an early articulation of the non-intervention norm) – and of “the rule against premature recognition” were a polite way to validate the outcome of any contest untainted by inadmissible foreign assistance to separatist forces. States were licensed to crush internal efforts at territorial fragmentation; only when they proved confessedly unwilling or decisively unable to do so did they lose their legal claim to territorial integrity. In effect, independence forces demonstrated their legitimacy by winning a civil war against the odds – odds made longer by the asymmetry of non-intervention norms, which imposed an absolute ban only on assistance to the separatists.

Such a “trial by ordeal” doctrine is not as completely bereft of moral logic as it may initially appear. Assistance to separatist forces was a notorious means of both great-power predation and regional mischief. An alternative doctrine would not only be difficult to design – given the conundrum of delimiting political communities with inter-mixed populations and overlapping historical claims – but would also risk incentivizing ethno-nationalist mobilizations in majority-minority regions (which, inter alia, rarely augurs well for the ethnic groups that are minorities within such regions). The traditional rule is a harsh rule, but it is designed to avert scenarios that can be harsher still.

And yet, this “trial by ordeal” doctrine seems highly unsatisfactory in an international system that purports to subject exercises of power to the rule of law. In an international system in which statehood is rationalized as a manifestation of the self-determination of “the whole people belonging to the territory without distinction,” democratic values (even if not sufficiently robust to establish a “right to democracy”) must have some relevance. This, I believe, is the intuition that animates Vidmar’s book, and it is a worthy one.

Still, it is difficult to give a precise account of the role of democratic values in the actual or emerging international practice of state creation and recognition. Vidmar acknowledges that democracy is neither a necessary nor a sufficient condition, with respect to either the legal fact of statehood or formal recognition by foreign states and intergovernmental organization. Indeed, most recent cases of the emergence and non-emergence of new states can be accounted for without any specific invocation of democratic values. Democratic values operate at the margins, but not without discernible effect.

Of special interest here is the case of the 1991-92 “non-consensual dissolution” of the Socialist Federal Republic of Yugoslavia (SFRY), and particularly the independence of Bosnia and Herzegovina (BiH). Vidmar details the role of the Badinter Commission in establishing a legal framework for the recognition of BiH, but in his effort to rationalize the outcome, he neglects fully to highlight the Badinter approach’s unacknowledged discontinuity with conventional doctrine, and the implicit role of democratic values in that discontinuity.

Although attention is frequently focused on the later Badinter opinions that deal expressly with BiH and with questions of recognition, it was the very first opinion – issued on 29 November 1991, with Belgrade authorities continuing to insist on the SFRY’s territorial integrity and with armed conflict under way in Croatia – that determined all that was to follow. The Commission asserted that:

in the case of a federal-type State, which embraces communities that possess a degree of autonomy and, moreover, participate in the exercise of political power within the framework of institutions common to the Federation, the existence of the State implies that the federal organs represent the components of the Federation and wield effective power ….

The Commission went on to find that:

The composition and workings of the essential organs of the federation … no longer meet the criteria of participation and representativeness inherent in a federal state; …. The recourse to force has led to armed conflict from the different elements of the federation which has caused the death of thousands of people and wrought considerable destruction within a few months. The authorities of the Federation and the Republics have shown themselves to be powerless to enforce respect for … ceasefire agreements ….

The Commission deduced from this finding that the SFRY was “in the process of dissolution.”

Such statements might not seem surprising, having emanated from a panel of constitutional court judges from liberal-democratic states, but they had nothing to do with international law, at least as it existed in 1991. International law pointedly drew no distinction between federal and unitary states, and understood both constitutional arrangements and internal boundaries as subject to alteration through “internal processes”– not excluding coups, insurrections, and civil wars. A traditional approach would have taken the existence of internal armed conflict precisely as a reason to withhold judgment.

Instead, the Commission clearly implied that new states would be deemed “created” in advance of the establishment of facts on the ground, which lent special meaning to its subsequent (11 January 1992) ruling that “once the process in the SFRY leads to the creation of one or more independent States,” the formerly internal boundaries “may not be altered except by agreement freely arrived at.” In short, the Serb nationalists in Belgrade could legally use force neither to preserve the SFRY’s territorial integrity nor to affect the configuration of the states that would emerge from the federation’s extinguishment.

Vidmar seeks to validate the Badinter conclusion, not by embracing the Commission’s general transposition of uti possidetis from the decolonization to the dissolution context (which Vidmar correctly identifies as an error in reasoning), but by asserting the particular historical significance of the SFRY internal boundaries. The problem with this argument is that, as Peter Radan has pointed out, the SFRY’s internal boundaries were premised on unity, not separation. Vidmar asserts that the SFRY boundaries “merely took into account the historically realised identities that the Kingdom of Yugoslavia disregarded,” and that “the problem of Serbs settled outside the Republic of Serbia” was “inherited from the past” rather than product of SFRY line-drawing (p. 229). But this ignores an elephant in the room: the predation that Serbs suffered during World War II in the territories of Croatia and BiH (collectively encompassed by the Nazi-sponsored Independent State of Croatia (NDH)). The SFRY’s design cannot be said to have anticipated the eventual achievement of Croat and Bosniak ethno-national aspirations for the independence of those territories and the relegation of the respective Serb populations to minority status; indeed, the complexity of SFRY’s design – premised on “Brotherhood and Unity”– promised precisely to preclude such eventualities.

But Vidmar need not have resorted to this characterization of the SFRY’s internal boundaries as proto-international borders. He could rather have stressed that the Badinter innovation – and its acceptance by the international community – manifested an application, albeit indirect, of democratic values to the assessment of an internal conflict.

Viewed in purely procedural terms, any attribution of the Badinter solution to respect for “democracy” is classic question-begging: The democratic will of majorities within pre-established territories was credited, whereas the democratic will of the (more or less geographically-concentrated) Serb populations of those territories – either to remain within one Yugoslavia or, alternatively, to secede prior to the pre-established territories’ emergence as sovereign states – was expressly disregarded. (Worse, the Badinter solution “coincidentally,” but systematically, yielded the realization of one set of the ethno-national aspirations and the frustration of another set.)

But substantively, the Badinter Commission had ample basis for adjudging that “the essential organs of the federation … no longer meet the criteria of participation and representativeness inherent in a federal state.” There was not simply a crisis of federal institutions (which ordinarily would call for non-interference); there had been, in effect, an undemocratic coup d’état, and further, a coup d’état that constituted a hijacking of multinational Yugoslavia by a plurality (but not majority) ethno-national movement. Milošević’s Yugoslavia could not be perceived to represent the self-determination of “the whole people … without distinction.” Moreover, the “recourse to force” on behalf of the Serb minority in Croatia (and later, in BiH), which might conceivably have been regarded as a defensive effort to forestall majority domination, was not so regarded, because of the actual character of the violence on the ground. Whatever the ideological neutrality of the post-decolonization UN peace and security order, the UN system’s neutrality had never extended to the Axis-era fascism of which the Serb nationalist movement appeared reminiscent, in both rhetoric and behavior.

The Badinter Commission’s real assessment, albeit operating beneath the surface, was undoubtedly a substantive assessment that drew – broadly speaking – on democratic values. The Commission took sides in the conflict, not by neutral application of procedural norms, but in an effort to thwart the Serb nationalist cause.

I thus offer this comment as a “friendly amendment” to Vidmar’s democratic statehood thesis. To be sure, democracy is not, in itself, the key to state creation and recognition. But democratic values lurk in the background. Any anticipation of the international system’s behavior in this area that does not take those values into account will be missing an important element.