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NO 141-142

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INFO   :::  Helsinki Charter - PAGE1 > Helsinki Charter No. 141-142 > Text


Helsinki Charter No. 141-142

July - August 2010



By Davor Gjenero

Croatian policymakers' decision that the Chief Legal Adviser at the Foreign Ministry should elaborate the reasons why Croatia had been among the countries recognizing Kosovo before the International Court of Justice /ICJ/ and why its independence declaration had been indisputable for it caused the official Belgrade's grudge. As it seems, the prevalent opinion in Serbia was that the decision had been made under the pressure from US as an international patron of sorts of the process of independence proclamation. It goes without saying that reductionistic explanations never provide realistic overviews of the developments preceding a decision or do mirror the interest structure causing actions.

Actually, regardless of US priorities, Croatian policymakers had no other choice but to clearly articulate their legal opinion along with their perception of the international circumstances emerging from Kosovo's independence. Otherwise, Croatia would have questioned its position at the international arena, as well as the processes preceding its own international recognition.

Some segments of Croatia's argumentation resembled those of, say, Denmark, which grounded its advocacy for Kosovo independence on the facts that Kosovo population had been subjected to longstanding violation of human rights, that their aspiration for independence had been legitimized at a referendum and that Kosovo independence declaration could not set a legal precedent for other possible secessions. Croatia's explanation of its decision was based on three facts. First, Croatia takes that any decision on final status of Kosovo must take into consideration popular will. Second, that Kosovo Albanians had suffered under Serbia for years. Third, in ex-Yugoslavia Kosovo was a constitutive part of the federation the disintegration of which - confirmed by the Badinter Commission - opened the door to self-determination to the people of Kosovo. The third argument reflects the staunch political stance of the then president, Stjepan Mesic, who, though not prone to doctrinal reasoning, developed the opinion of the Badinter Arbitration Commission into a political doctrine that guided his positions in all "post-Yugoslav" crises. Apart from his attitude towards Kosovo independence, Mesic was often invoking Badinter's arbitration opinion in the course of the border dispute with Slovenia and other bilateral disputes involving the states that emerged from ex-Yugoslavia. It could be said, therefore, that the relations established with the states created after Badinter's arbitration were grounded on "Mesic's doctrine."

In late 2009 and early 2010 the said doctrine caused Belgrade's grudge and not only when it came to Kosovo status. Namely, Mesic's concept (whereby Kosovo is entitled to proclaim independence under existing circumstances, including the fact that it used to be a constitutive part of a federation that dissolved and, therefore, the independence declaration only rounded off the process launched by Milosevic's assault at the Yugoslav federation and continued by Slovenia's and Croatia's independence proclamation) made Belgrade nervous, the more so since the Serbian parliament was discussing the Vojvodina Statute at the time Croatia's representative was elaborating her country's stance before the IJC. Neither Croatia's argumentation in favor of Kosovo independence nor Mesic's position set any kind of precedent in the case of Vojvodina's independence. For, apart from having been a constitutive element of the former Yugoslav federation Kosovo have had both "corpus" and "animus" of independence. However, delivering their advisory opinion ICJ judges did not take into account Croatia's argumentation about Kosovo having been a constitutive element of the Yugoslav federation. Nevertheless, their basic argumentation about independence declaration not contradicting the international law did not oppose or, moreover, much differ from "Mesic's doctrine."

IJC advisory opinion of July 22 is a precise legal analysis mirroring the new perception of state sovereignty and peoples' right to self-determination. Judges had avoided considering historical developments leading to the international protectorate over Kosovo. Hence, Croatia's arguments about the constitutive nature of the former province that was at the same time a constitutive element of (Socialist Republic) Serbia and a constitutive element of the federation (with direct representation in federal legislative and executive bodies) did not found any echo in the advisory opinion. But the same advisory opinion does not much differ from the political doctrine whereby the relations in the territory of ex-SFRY are based on the opinion of the Badinter Arbitration Commission.

Namely, by prioritizing human rights on the on hand and the right to self-determination on the other, IJC advisory opinion provided a major contribution to the international law and global protection of human rights. ICJ considered the right to self-determination an area in which international public law had made the biggest progress and human rights as such became crucial for any decision dealing with legality of self-determination actions. With such understanding of self-determination and sovereignty ICJ simultaneously set foundations for human rights protection worldwide, stability of the international order and inviolability of borders. Actually that was the concept strongly emphasized in the opinions of the Badinter Commission, whereas ICJ judges' contribution to the international public law - the position that in the contemporary world the concept of fundamental human rights has priority over conventional perception of sovereignty - derives to a certain extent from the contribution given by the Badinter Commission.

Speaking of "Mesic's doctrine" one should take into account that by the opinions of the Badinter Commission Croatia was identified as a sovereign state only once it met a major precondition in the domain of human rights. The then president Franjo Tudjman's insistence that Croatia's right to independence derived from "the continuity of the Croatian statehood" - actually from the concept developed by Ante Starcevic in the 19th century when Croats were just a small European nation without a state of their own - was not valid enough for the Badinter Commission to recognize Croatia as a sovereign state within the borders laid down by the 1974 Constitution.

To lay a claim on a territory a state first had to secure instruments for the protection of human rights of the population living in that territory, while to consider the areas beyond the Zagreb regime's control in 1991 inalienable parts of Croatia's sovereignty, Croatia had first to develop a legal infrastructure for the protection of national rights and for political integration of the citizens of Serb ethnic origin living in the territory beyond its control. Hence, adoption of a constitutional law on human rights and the rights of national communities or minorities was "Badinter's precondition" for Croatia's international recognition. Only once it passed such law in December 1991 Croatia was internationally recognized, together with Slovenia, on January 15, 1992.

Unfortunately, the constitutional law, adopted with the guidance from the Venice Commission of the Council of Europe, failed to pass its first serious test. In the period 1992-1995 when the area where Serbs had been in the majority before the war was occupied, Croatia was formally taking the measures of political integration deriving from the constitutional law. Hence, in that period the Serb community had the right to proportional representation in the parliament (13 MPs). But at the parliamentary session in the aftermath of the Storm operation Serbs' right to proportional representation and the establishment of two counties - in Glina and Knin - where Serbs were in the majority was suspended. (Tudjman seized the opportunity of the victorious Storm operation to call early parliamentary elections at which his political party triumphed). The principle of proportional representation in representative and executive bodies of regional and local self-governments was not formally suspended but was not applied in real life till the adoption of a new constitutional law on the rights of national minorities in 2002.

It turned out that the then Croatian regime's understanding of "political integration" and "sovereignty" was most reductionist - the regime sought to control a territory but cared little for its population and their fundamental human rights. The first major political change in Croatia took place during international mediation and supervision of the process of peaceful reintegration of Podunavlje. Formally based on an illegitimate document - the Erdut agreement signed between Tudjman's macho and representatives of illegal Serb authorities - the process enabled reintegration of both the territory and the population, safeguard of acquired rights and a so-so coexistence of the two communities. Regretfully, the concept of the Erdut agreement was not abandoned and replaced by the once stemming from the new constitutional law once it enabled the attainment of its basic goals. And regretfully, leaders of the Serb community in Croatia and a part of Croatia's political class were making more political profit from the concept of ghettoization and parallel living of two communities on the same territory than from the concept consociation in which two national groupings share responsibility in self-government and for the development of community - as laid down by the constitutional law.

Though not precisely defined by the criteria for the beginning and the end of negotiations with EU, it goes without saying that full integration of the Serb community testifying of a consolidated democratic order and the rule of law preconditions Croatia's membership of EU. Hence, the plan is to have the process completed by the end of this year, including convening of a donor conference supposed to help to have the refugee problem finally solved.

No matter how "badly it sounds" to Belgrade, "Mesic's doctrine" is by far more useful for Kosovo than the Hallstein doctrine so fascinating all the time to Belgrade policymakers, from Kostunica to Tadic. In the aftermath of Kosovo independence declaration and the series of international recognitions of the new state the then administration in Belgrade and its key policymaker, Vojislav Kostunica, begun implementation their version of the Hallstein doctrine.

Walter Hallstein went down in history as the first president of the Commission of the European Economic Community but also as an author of the doctrine marking Germany's foreign policy in the Cold War era. German Chancellor Konrad Adenauer appointed this outstanding professor of the international public law a secretary of state in his Chancellery and soon after a secretary of state of the Foreign Ministry. Apart from being a head of the German delegation at the negotiations on Schumann's plan at that time, which made him one of pioneers of European integration, he formulated a political doctrine according to which the Federal Republic of Germany was a legitimate representative of the German people. Consequently, the Federal Republic of Germany did not establish diplomatic relations with the countries of the Eastern Bloc, except for the Soviet Union to which the doctrine did not apply because of its special role in the arrangements for FR Germany's statehood. Actually, FR Germany was breaking diplomatic relations with all the countries that, formally or factually, recognized the Democratic Republic of Germany. In fact, the former Yugoslavia and Cuba were the only countries with which FR Germany broke diplomatic relations on the ground of the Hallstein doctrine.

The doctrine was abandoned once Brandt's liberal social-democratic administration came to power and formulated the famous "Ost-politik" in 1970s. In fact, the doctrine had already become null and void when in 1967 Germany established diplomatic relations with Rumania and renewed relations with Yugoslavia in 1968. The Hallstein doctrine served as a model for yet another two foreign policy doctrines. That refers, above all, to one-China policy the People's Republic of China has been pursuing to this very day, and to the situation created by the Vietnam War.

Kostunica's variant of the Hallstein doctrine differed from the original given that "lowering the level" of diplomatic relations and withdrawal of ambassadors was unselective - the same when it came to US and major European countries and the countries in the region. When President Tadic replaced Kostunica and became a key policymaker this variant of the Hallstein doctrine applied to the countries that have recognized Kosovo became selective, above all targeting the countries in the region. Serbia's response to Macedonian and Montenegrin recognition of Kosovo was by far stronger than its reaction to the same act taken by other countries.

When Skopje and Podgorica decided to recognize independent Kosovo their ambassadors to Serbia were proclaimed personae no grata. Then, when Montenegro established diplomatic relations with Kosovo, Serbia withdrew its ambassador in Podgorica. Relations with Macedonia aggravated when the latter settled the border dispute with Kosovo and thus put an end to one of its "Balkan problems." The act for which Skopje and Prishtina were praised internationally and by which the Macedonian foreign policy tried to convince the world that the country was a part of the "Balkan problem" no longer found quite a different echo in Belgrade.

Unlike Kostunica's variant of the Hallstein doctrine, which was nothing but a demonstration for internal use and harmed Serbia more than it benefited it in international relations, Tadic's selective application of the same variant is by far more serious. Namely, by sticking to this doctrine Belgrade signals its perception of the structure of international relations. The process of Croatia's "learning" about integration not only of territories but of population as well and about the safeguard of fundamental human rights was painful and rocky.

It was the international community that crucially helped Croatia learn some major lessons. Or, more precisely, European Union. Badinter was just its "first teacher." Whereas the first constitutional law on human rights and the rights of national communities and minorities preconditioned its international recognition, the second and incumbent one - a far better product and mostly an outcome of its own resources (though also subjected to assessment by the Venice Commission) - preconditioned the SAA with EU.

Serbia has never been challenged by international preconditions in the matter of its attitude towards the rights of Kosovo population. And not a single of its administrations since 1990 has ever bothered to deal with not only territorial reintegration but also reintegration of the population. This resulted in the advisory opinion of ICJ, saying that in present international circumstances integration of territories without integration of population is less acceptable than questioning of the conventional concept of sovereignty - by which a titleholder of sovereignty may treat the population in the territory of his sovereign reign at will.

Official Belgrade is facing two serious challenges now: on the one hand, it has to face up the consequences of the advisory opinion delivered at its request and, on the other, begin considering the consequences of its attitude toward the countries in the region. The same political mentality that failed to notice the changes in the international law in the second half of the 20th century produced the concept of asymmetrical regional relations Belgrade has been constantly offering to its neighbors (by applying a "softer" variant of the Hallstein doctrine). Hence, Belgrade's policymakers have been constantly turning their back to any regional initiative based on equality. Hence, Belgrade's problems may be doubled in the medium term: it may have to face a definite "loss of Kosovo" and find itself isolated in its closest neighborhood.


NO 141-142

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