Peter Radan, The Break-up of Yugoslavia and International Law. London:
Routledge, 2002. Pp. ix, 278.
For centuries, the attribution of territory and the determination of boundaries has
been one of the major threats to world peace and stability. These thorny and divisive
issues, with their potential for violence, are of critical importance in the context of the
dissolution of a state or secession by a group within a state. In The Break-up of
Yugoslavia and International Law, Peter Radan, a senior lecturer at Macquarie
University in New South Wales Australia, tackles the difficult question of boundary
determination through a critical analysis of a recent precedent, namely the break-up of
the former Yugoslavia.
At the heart of Radans study lies the question of why claims to statehood by four
of Yugoslavias constituent republics were recognized by the international community
while similar claims advanced by national groups within those republics were
categorically rejected. On what grounds were the internal federal borders of Slovenia,
Croatia, Bosnia-Herzegovina, and Macedonia deemed sacrosanct, effectively
trumping any claim to revision from within, when these same republics had
themselves, by their actions, called into question and radically transformed the
borders of the Socialist Federal Republic of Yugoslavia (SFRY)?
According to Radan, historical events (e.g., the Enlightenment, the French and
American Revolutions) bequeathed to international law not one but two theoretical
versions of the right of self-determinationthe classical and romantic theories
deriving from a differing understanding of the term the people, those endowed with
the right of self-determination.
Radan insists that the implications of these two distinct theories of self-
determination are highly significant for state creation. If an individuals identity is tied
to the state or territorial unit (the classical theory), self-determination will take place
within the territorial confines of that state or unit. The classical theory therefore
supports the principles of territorial integrity and the inviolability of state borders. But
if an individuals loyalty is to the cultural group or nation (the romantic theory)
the two expressions being synonymous in much of the literature on the topic (11)
self-determination will take place when that nation obtains its own state.
Consequently, the romantic theory admits the alteration of existing state borders and
clearly contemplates secession as well as irredentism.
Radan claims that most of the recent and current claims to self-determination are
based on the romantic theory of self-determination, including those relating to the
former Yugoslavia (15). He rejects the widely held view that a people must be
defined as the total population of a political unit, such as a colonial entity or an
independent state. Radan argues, rather, that UN and other international documents,
as well as international practice, support the view that a nation or national groups are
included within the meaning of a people. The conclusion that a nation is a people
leads Radan to argue that secession from an internationally recognized state pursuant
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to the right of self-determination of peoples is legally and practically possible. He
does, however, concede that this right to secede is limited by the strict condition that it
can only occur when a state discriminates against, and thereby denies self-
determination to, a group within that state.1
[Vol 49
Having insisted that a right to secession flows from the right of self-determination
of peoples, Radan then tackles the critical issue of the determination of the precise
territorial parameters of the seceding entity. Confronted with the break-up of the
former Yugoslavia, the international community held that in the context of secession
from a federal state, secession must occur within the confines of existing federal
borders. The legal justification for this conclusion was the principle of uti possidetis.2
Radan begins by presenting an historical analysis of the development of the uti
possidetis principle from its Roman law origins to its transformation as a principle of
international law.3 He turns to the principles modern genesis with the independence
movement in Latin America and the concomitant tension and friction over boundaries
among the newly independent republics, as well as the role of the principle in the
decolonization of Africa and, to a lesser extent, Asia.
Radan draws a number of conclusions from this analysis regarding the application
of the uti possidetis principle in the colonial context. First, the principle of uti
possidetis only applied in cases of disputed boundaries between those states that had
succeeded in gaining independence from a former colonial power. Second, the
principle applied only if the disputant states agreed that it wouldconsent was an
absolute pre-requisite. On this question, Radan expresses doubt as to the correctness
of the International Court of Justices ruling in the Frontier Dispute Case in which it
declared that uti possidetis was a firmly established principle of international law
where decolonization is concerned … 4 According to Radan, by this ruling, the Court
declared uti possidetis to be an obligatory rule of international law. However, as
Radan argues, even if the Courts interpretation is valid, it simply means that uti
possidetis applied in colonial boundary cases if, and only if, the disputant parties did
not stipulate, as they were free to do, that other principles would apply. This caveat is
1 The reference here is to the limit imposed by the Declaration on Principles of International Law
concerning Friendly Relations and Cooperation among States in accordance with the Charter of the
United Nations, GA Res. 2625 (XXV), U.N. GAOR, 25th Sess., Supp. No. 18, UN Doc. A/8082
(1970) 121.
2 Uti possidetis, ita possideatis: as you possess, so may you continue to possess.
3 Radans account, however, is brief and focuses mainly on the role played by the uti possidetis
principle in resolving border disputes following the decolonization of the Spanish and Portugese
colonies of Latin America. For more information on the principles Roman law origins, see Suzanne
Lalonde, Determining Boundaries in a Conflicted World: The Role of Uti Possidetis (Montreal:
McGill-Queens University Press, 2002); John Bassett Moore, Memorandum on Uti Possidetis in
The Collected Papers of John Bassett Moore, vol. 3 (New Haven: Yale University Press, 1944)
4 Case concerning the Frontier Dispute (Burkino Faso v. Republic of Mali), [1986] I.C.J. Rep. 554
at 565.
2004]
of fundamental importance for Radans subsequent criticism of the territorial
resolution imposed on all concerned parties following the break-up of Yugoslavia.
BOOK NOTE / RECENSION
805
Radan explains that to fully appreciate the historical, political, and legal
repercussions of the break-up of the SFRY in 1991, it is important for the reader to
grasp the essentials of Yugoslavias political and constitutional history. Relying on
valuable sources, often difficult to access in North America, Radan paints a detailed
and fascinating picture of the efforts expended by Yugoslavias political elites
throughout most of the twentieth century to find a workable constitutional and
territorial structure to accommodate the aspirations of its multinational population.
Radan deftly considers the rise of nationalist movements within Yugoslavia in the
early 1980s and the question of why Yugoslavias federal structure, in the end, failed.
The simple answer, according to Radan, appears to be that federalism is ultimately an
inadequate response to the forces of nationalism in multinational states. As he notes,
the territorial integrity of multi-national states is not a nationalistic goal (157).
The analysis of the secessions and attempted secessions of Slovenia, Macedonia,
Croatia, Bosnia-Herzegovina, the Republic of Serb Krajina from Croatia, the Serb
(Republika Srpska), as well as the Croat and Muslim autonomous communities, from
Bosnia-Herzegovina, and the Republic of Kosovo from Serbia, from an historical,
political, constitutional, and military perspective is without doubt one of the real
strengths of Radans book. He presents a very detailed and faithful account of the
events that led to the various declarations of independence and the international
reaction to them and does so by relying on official government sources and decisions
rendered by Yugoslavias Constitutional Court, in addition to a host of other official
and doctrinal sources, normally inaccessible to the non-speaker of the former
Yugoslavias official languages.
Radan then concludes that, with the exception of Bosnia-Herzegovina, all the
secessions of, and within Yugoslavias republics were explicitly justified on the basis
of the right of peoples to self-determination. Even in Bosnia-Herzegovina, he insists,
though there was no dominant national group, self-determination was still a
significant factor. Furthermore, all the demands for secession, based upon self-
determination, involved the romantic theory of self-determination, defining a
people in terms of a nation. Yet, the international communitys response to those
secessionist demands was to recognize the secessions of Yugoslavias republics, but
not those initiatives emanating from national groups within those republics. And, even
more importantly, according to Radan, this selective recognition policy was explicitly
defended on the grounds that it reflected existing international law regarding the
exercise of the right of peoples to self-determination.
As Radan explains, the international communitys position on the issue of
recognition of the breakaway republics was, to a large extent, influenced by rulings of
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the Yugoslavia Arbitration Commission5 established in the context of the International
Conference for Peace in Yugoslavia. Radan scrutinizes three critical findings made by
the Badinter Arbitration Commission, which had a tremendous impact on the final
outcome of the crisis in Yugoslavia: (1) that Yugoslavia was in the process of
dissolution rather than experiencing secession from a number of republics; (2) that the
right of self-determination could only be exercised by particular territorial units,
namely the constituent republics of the SFRY; (3) and that the principle of uti
possidetis applied to cases outside the colonial context and, in fact, dictated a territorial
outcome that could be imposed upon unwilling parties.
The opinions of the Badinter Commission have been the subject of much
academic debate and scrutiny. Radan gives a full and comprehensive account of the
main criticisms levelled at the Badinter Commissions principal findings. But in so
doing, he offers a novel and particularly interesting analysis of the dissolution versus
secession debate. He painstakingly assembles the evidence in support of his argument
that the process unfolding in the SFRY in 1991 was one of secession and not
dissolution. He addresses, one after the other, the legal arguments upon which the
Badinter Commission justified its finding of dissolution and skillfully and
convincingly refutes them. This persuasive analysis, in turn, supports his argument
that the recognition extended to the republics in 1992 was in fact recognition of states
born of secession. This conclusion, of course, leads Radan to the point at the heart of
his thesis: there is no justification for insisting that the borders of the republics of
Croatia and Bosnia-Hercegovina remain sacrosanct while not extending that same
right to the borders of the SFRY (219).
Radan concludes this argument by emphatically rejecting the proposition
according to which the uti possidetis principle could account for this selective and
territorially based interpretation of the right of self-determination of peoples, rejecting
also article 5 of the SFRY Constitution of 19746 as a legal justification for the
selective recognition policy. According to him, Yugoslavia was not a case of
decolonization, nor did the disputant parties in the conflict agree that their respective
borders would be determined by the principle of uti possidetis. Properly understood,
uti possidetis is irrelevant in situations like Yugoslavia. The principle of uti possidetis,
asserts Radan, is only useful in resolving disputes as to the precise location of an
agreed upon border, not in deciding which lines should become international
boundaries (247).
To insist that in cases of secession from a federal state, internal administrative
borders should automatically become international borders amounts, according to
Radan, to an unprincipled extension of the colonial principle. More fundamentally,
5 More commonly know as the Badinter Arbitration Commission after its president, Robert Badinter.
6 Gisbert H. Flanz, Constitution of the Socialist Federal Republic of Yugoslavia in Albert P.
Blaustein & Gisbert H. Flanz, eds., Constitutions of the Countries of the World (Dobbs Ferry, N.Y.:
Oceana Publications, 1974) 1.
807
BOOK NOTE / RECENSION
2004]
Radan argues in the conclusion that, irrespective of legal rights or wrongs, the
solution proposed by the Badinter Commission and espoused by the international
community is, for a number of reasons both political and practical, too simplistic and
inflexible to help the cause of international peace and stability. And, he argues, while
in some situations, recognition of statehood within existing federal borders will be
appropriate (he cites Slovenia with its homogeneous Slovene population as a case in
point), in cases where the impulse for secession is driven by nationalist ideology and
where federal borders cut across national lines, more sophisticated measures need to
be undertaken to ascertain the international borders.
In applying this principle, Radan suggests that internationally supervised
plebiscites in contested areas could be organized, although common sense limitations
based upon geography would need to be taken into consideration. Radan even goes so
far as to suggest that in some cases, it may be necessary to facilitate orderly and
voluntary population transfers, a fairly controversial proposition. The problems of
implementing such a policy can readily be envisaged, yet his arguments in favour of
establishing borders in such a way that the maximum number of persons can find
themselves on their preferred side of a new line, avoiding the turmoil and violence
that engulfed the former Yugoslavia, are certainly persuasive.
Radans book is both well written and extremely well researched. He provides a
useful and lucid account of complex international situations and legal concepts.
Through his use of sources, which for linguistic or other reasons are often unavailable
to many scholars, the book is a veritable gold mine of little known and often
fascinating factual information, offering new insights into the troubles in the former
Yugoslavia. The analysis is thought provoking and, in some instances, is at odds with
current accepted opinion which, of course, makes Radans arguments all the more
interesting. For example, he asserts that [f]or the purposes of self-determination, the
definition of a people should be the same, be it in the context of colonial territories or
independent states (62). Some jurists might argue that the legal definition of a
people entitled to exercise the right of self-determination has evolved over time.
States, always anxious to contain the potentially explosive impact of the right of self-
determination, have only cautiously extended this right to new categories of peoples.
During the decolonization period, for instance, no one can deny that most of the
African colonies were comprised of many different peoples and nations, defined
according to ethnic, cultural, religious, or linguistic criteria (39). However, for the
exercise of the internationally recognized and controlled right of self-determination,
and despite a few notable exceptions, the only people recognized as the legal holder
of that particular right was the population of the colony as a whole. Of course, there
can be little debate that, with the adoption of the Declaration on Friendly Relations7
and the two International Covenants,8 the right of self-determination was extended to
7 Supra note 1.
8 International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3 (entered into
force 3 January 1976), GA Res. 2200A (XXI), 21 UN GAOR, Supp. No. 16, UN Doc. A/6313 (1966)
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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all peoples, including cultural or national groups but then the international
community, through a restrictive interpretation of how that right could be exercised,
severely curtailed the possible outcomes.
[Vol 49
Radan also adopts a novel approach in analyzing the decisions rendered by the
Badinter Commission. On the basis of arguments deriving from the Yugoslav
Constitution as well as fundamental international legal principles, Radan skillfully
demonstrates that the Badinter Commissions key finding in Opinion No. 19 that
Yugoslavia was in the process of dissolution was not founded either in fact or in law,
and that consequently, its pronouncements concerned secession by four of the
constituent republics.
As a result, Radan then argues, Yugoslavia is in fact a recent precedent
recognizing a right of secession. And he makes a persuasive case. However, the
Badinter Commission itself declared that its pronouncements flowed from its initial
finding that the process unfolding in Yugoslavia was indeed one of disintegration of
the state. And though this conclusion may be flawed, as Radan argues forcefully, this
finding nevertheless formed the linchpin of the subsequent opinions rendered by the
commission. It might also be argued that the international community only formally
entertained the claims to independent statehood once the commission had
characterized the situation as one of dissolution. For the international community,
haunted by the fear of opening up Pandoras box and unleashing an unfettered right to
secession, this legal determination was obviously of great comfort and reassurance.
But these considerations in no way detract from Radans powerful analysis of the
break-up of the former Yugoslavia. He suggests a novel approach to understanding a
precedent that has profound implications for international law. Indeed the break-up of
the former Yugoslavia remains a most compelling and fascinating study, involving, as
it does, the collision of core principles of the international legal system: the right of
self-determination of peoples, the right to territorial integrity, the sanctity of
established borders, and the rights of minorities. And scholars and experts worldwide
continue to debate the best possible reconciliation of these basic principles, which were
clearly divisive and disastrous in Yugoslavia, in the hope that such a tragedy can be
averted in the future. Radans book makes an important contribution to this vital debate.
Suzanne Lalonde
49; International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (entered into force 23
March 1976), GA Res. 2200A (XXI), 21 UN GAOR, Supp. No. 16, UN Doc. A/6316 (1966) 52.
9 [Disintegration of the SFRY] (1991), 92 I.L.R. 162 (Conference on Yugoslavia, Arbitration
Commission).
