Arbitration Commission of The Peace Conference On The Former Yugoslavia - Criticism of Opinion No. 3

Criticism of Opinion No. 3

Peter Radan, an Australian legal academic, has criticised the Badinter Commission's interpretation of the SFRY Constitution. Apart from principles of international law, the Badinter Commission sought to justify the relevance of the Badinter Borders Principle by reference to article 5 of the 1974 Constitution of the Yugoslavia. The Commission said that the Badinter Borders Principle applies all the more readily to the Republics since the second and fourth paragraphs of Article 5 of the Constitution of the SFRY stipulated that the Republics’ territories and boundaries could not be altered without their consent.

Article 5 stipulates:

(1) The territory of the SFRY is indivisible and consists of the territories of its socialist republics.

(2) A republic’s territory cannot be altered without the consent of that republic, and the territory of an autonomous province — without the consent of that autonomous province.

(3) A border of the SFRY cannot be altered without the concurrence of all republics and autonomous provinces.

(4) A border between republics can only be altered on the basis of their agreement, and in the case of a border of an autonomous province — on the basis of its concurrence.

In referring to article 5, his criticism is that the Badinter Commission was guilty of selective quoting.

Reason for this opinion is that in relying on paragraphs 2 and 4 of article 5, the Badinter Commission ignored the provisions of paragraphs 1 and 3. In doing so it was justifying the division of the SFRY and the alteration of its international borders in violation of paragraphs 1 and 3. Furthermore, it can be argued that the territorial integrity of republics and the sanctity of their borders referred to in paragraphs 2 and 4 of article 5 only applied in the context of the Yugoslav state whose own territorial integrity and borders remained in place. A republic seeking to violate the provisions of paragraphs 1 and 3 of article 5 could hardly reap the guarantees contained within paragraphs 2 and 4. Consequently, Peter Radan argues that article 5 provides no support for the application of the Badinter Borders Principle to the fragmentation of the SFRY.

Based upon the above analysis of the reasoning of the Badinter Commission in Opinion No 3 Peter Radan concludes that neither the international law principles of respect for the territorial status quo and uti possidetis nor the provisions of article 5 of the Constitution of the SFRY 1974 provides any justification for the Badinter Borders Principle."