(A Discussion Paper Prepared for the ISA Convention Workshop "Globalization and Democracy", Los Angeles, March 14, 2000)

Mikulas Fabry

Ph.D. Candidate

Department of Political Science

The University of British Columbia

Vancouver, B.C. V6T 1Z1

Canada

Tel. (604) 827-4244

E-mail: mfabry@interchange.ubc.ca

I.

Professor Laponce begins his essay by arguing that "the transfer of sovereignty and the modification of borders by means of referendum need no longer be left as unused as it was in the tool kit of international diplomacy" and by deploring the fact that "the plebiscite was not used by Western diplomacy to obtain changes of the ill-fitting borders that ran through the nations in conflict in the ex-Yugoslavia (p.1)." The war in Bosnia-Herzegovina, however, erupted after no fewer than seven referenda on the question of sovereignty and borders in Yugoslavia; two of them in fact took place in Bosnia itself. Western diplomacy indeed firmly insisted on certain referenda and afterwards recognized their results. In a stark contrast, the dissolution of Czechoslovakia transpired peacefully and constitutionally, yet without a referendum. And Western diplomacy, it should be added, did not urge one.

I contend in this brief discussion paper that if the goal is to help bring about settlements of ethnonational antagonisms, the quest to come up in theory with the perfect mechanism that would get us there will be endlessly frustrating and is the wrong way to go. Referendum may sometimes be a viable solution, but at other times, as in the former Yugoslavia, it may be the crux of the problem or, as in the former Czechoslovakia, an unnecessarily complicating factor. No viable solution can be achieved, though, by ignoring the underlying circumstances of a particular case, both domestic and international, or by discounting the importance of statecraft, i.e. the aptitude and skill of statesmen and stateswomen to practice international relations and make difficult choices.

The collection of international norms regarding territory to which Professor Laponce refers, using the expression coined by Robert Jackson and Mark Zacher (1997), as the "territorial covenant" is a set of broad principles that pertain to state recognition of territorial claims. They stipulate that no territorial change attained through the use of force can be recognized by the international society of states as valid and they permit only territorial modifications achieved by way of consent of all parties involved. These norms fully apply also to non-sovereign jurisdictions which gain sovereign status: unless their governments decide otherwise, their former administrative borders must remain intact.

Referendum can be a workable option only under the condition of mutual consent. In hard cases no mutual consent exists by definition. If parties do not reach an accord on the question, the meaning of yes and no answers, the passing majority or the territory it should cover, a referendum will not resolve anything and may well lead to considerable disorder. While mutual consent was obtainable in the domestic case of the Swiss Jura that Professor Laponce gives, an international agreement on a referendum that would change either juridical status of a territory or its boundaries is typically extremely difficult to get. We should not forget that in the other two examples he analyzes, the post-World War I referenda in Schleswig-Holstein and Upper Silesia, Germany gave its consent because it was militarily defeated. And this "consent of the defeated" later proved to be a source of German resentment and European insecurity.

While to reject the current territorial covenant is to resurrect in one form or another a right of conquest, to accept it does not mean that one has a detailed road map of foreign policy conduct. The statesperson still has to formulate prudent, responsible, balanced and timely decisions. International territorial norms allow for a range of policies, including changes of juridical status and boundaries through plebiscite. Referendum was put to ample use in Yugoslavia, but, if anything, this Balkan country should serve us as a sobering example of pitfalls this option carries.

II.

On June 25, 1991 Slovenia and Croatia proclaimed their independence from Yugoslavia. They justified this move by reference to their inherent right of self-determination and the overwhelming endorsement of separation in the prior-held republic-wide referenda. Even though the March 1990 ruling of the Yugoslav Supreme Court determined that a unilateral declaration of independence by a republic was illegal and unconstitutional, the Macedonian referendum on and proclamation of independence (September 1991) and Bosnian declaration of sovereignty (October 14, 1991) followed.

Serbia did not object to these republics’ secession per se nor did it otherwise deny the right of Slovenes, Croats, Macedonians or Bosnian Muslims to self-determination. But it most strenuously took issue with the unilateral character of these secessions and, even more emphatically, with the departure of Croatia and Bosnia-Herzegovina from the federation with their borders intact. The government of Serbia and the federal government of the diminishing Yugoslavia (Serbia and Montenegro) argued that, according to the 1974 SFRY constitution, the right of self-determination belonged to the constituent ethnonations of Yugoslavia, not their territorial republics. Croatian Serbs and Bosnian Serbs were thus, according to Serbia and those Serbs themselves, entitled to the right of self-determination as members of a constituent Serb nation. They could just not be, the argument went, forcibly taken out of Yugoslavia, a country for which they felt intense loyalty, be cut off from their fellow Serbs and be relegated to the status of ethnic minority in the states they had never wished to be part of in the first place.

As early as March 1991 the Croatian Serbs proclaimed an autonomous "Republic of Krajina" and after the winning May 12 referendum on remaining in Yugoslavia (ignored by the Croatian government) announced Krajina’s "union" with Serbia. The civil war in Croatia started the moment when the Krajina Serb paramilitaries and the Yugoslav federal army (JNA), by now devoid of Slovenian, Croatian and shortly thereafter other secessionist republics’ conscripts and officer corps, began to fight the Croatian forces to prevent the incorporation of Serb-inhabited territories into an independent Croatia. This scenario then repeated itself several months later in Bosnia-Herzegovina when the Bosnian Serb representatives in the republican parliament boycotted the vote on Bosnian declaration of sovereignty, later denounced it as an unconstitutional act that ignored the three-nation consensus principle, and finally established their own "Assembly of the Serbian people of Bosnia-Herzegovina" and on November 9 and 10, 1991 organized in Serb-inhabited regions a referendum on remaining in Yugoslavia.

All referenda had positive results but none took place with the consent of other relevant parties. Most importantly for the purposes of this paper, the Croatian Serbs and Bosnian Serbs on the one hand, and the Croatian and Bosnian governments on the other, repudiated each other’s votes.

What was the international reaction to these hostile developments? The EC, the US, the USSR and others wished to keep Yugoslavia together, but when, in October 1991, four out of the six republics had declared their intention to leave the federation and ceased to have their representatives in the federal agencies, the EC felt it had no choice but to agree that "a political solution should be sought in the perspective of recognition of the independence of those Republics wishing it, at the end of a negotiating process conducted in good faith and involving all parties (Trifunovska: 352)." The misfortune, however, was that rather than following its own advice, the EC under German leadership prematurely recognized Croatia as a sovereign state. Rather than seeking the conditions which might have elicited agreement between by this point warring parties, the EC in effect privileged one set of claims over another. While the US loudly criticized its European counterparts for their ill-advised recognition of Croatia, American diplomacy then turned around and in a similarly precipitous fashion recognized Bosnia. Whereas it would be false to argue that the West "caused" the Yugoslav wars, hasty recognitions of Croatia and Bosnia nevertheless contributed to the immediate escalation of the conflict, particularly in Bosnia-Herzegovina. There a brutal three-way war erupted almost immediately after US and EC recognition. The comment of one observer that "the West came to Yugoslavia as fire fighters and ended up being pyromaniacs (quoted in Dragnich, 1995: 110)" contains at least some truth.

Was there an alternative course of action? There clearly was and Javier Perez de Cuellar, the UN Secretary General, Cyrus Vance, his envoy for Yugoslavia and Lord Owen, the Co- Chairmen of the EC-organized International Conference on Yugoslavia, among others, advocated it. They wanted recognition to be withheld until Yugoslav republics had all agreed on their mutual relationships. These diplomats were correct in anticipating that to have prejudged the situation in favour of some and at the expense of others could not lead to peace. Owen even explicitly recommended the exploration of consensual changes of boundaries. In his account of events he wrote the following:

My view has always been that to have stuck unyieldingly to the internal boundaries of the six republics within the former Yugoslavia,…before there was any question of recognition of these republics, as being boundaries for independent states, was a folly far greater than that of premature recognition itself. The refusal to make these borders negotiable greatly hampered the EC’s attempt at crisis management in July and August 1991 and subsequently put all peacemaking from September 1991 onward within a straitjacket that greatly inhabited compromises between the parties in dispute (1995: 33).

III.

The problem in the Yugoslav case was not with the territorial covenant itself, as Professor Laponce implies in his essay, but with its application. The normative and practical emphasis on mutual consent with respect to international territorial disputes is better than any kind of return to the pre-1914 right of conquest. In the absence of agreement on border changes, territorial conservatism seeks to avert countries’ reliance on the use of military force in settling their quarrels over territory and thus the return to the age when power alone could ensure a state’s expansion in size. The task of diplomacy should, however, be to contemplate all possible consensual outcomes. After the split of Czechoslovakia in 1993, for instance, Czech and Slovak officials worked out a settlement in which they swapped four disputed hamlets and held plebiscites in two border villages after their inhabitants had protested at being left on the wrong side. To foreclose the search for diplomatic consensus on some issues may in truth bring more harm than good.

Dragnich, Alex (1995) Yugoslavia’s Disintegration and the Struggle for Truth. Boulder, CO: East European Monographs.

Jackson, Robert and Zacher, Mark (1997) "The Territorial Covenant: International Society and the Stabilization of Boundaries, Working Paper 15. Vancouver: Institute of International Relations.

Owen, David (1995) Balkan Odyssey. London: Victor Gollancz.

Trifunovska, Snezana, ed. (1994) Yugoslavia Through Documents: From Its Creation to Its Dissolution. Dordrecht, The Netherlands: Martinus Nijhoff Publishers.

Woodward, Susan (1995) Balkan Tragedy. Washington, D.C.: The Brookings Institutions.