The European Community ( Ec ) Essay

The European Community ( Ec ) Essay

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Facts: In 1991, several republics under the Socialist Federal Republic of Yugoslavia (SFRY) declared their independence without the federal’s consent: Slovenia, Croatia, Macedonia and Bosnia-Herzegovina. In response to this, the European Community (EC) established a negotiation forum known as Conference on Yugoslavia which further created the Badinter Commission to provide legal advice on the matter. The Badinter Commission was chaired by Robert Badinter from France and included the heads of the five European constitutional courts. The commission has handed down fifteen opinions on major legal questions regarding self-determination posed by the President of the Conference on Yugoslavia. Out of these, only the first two are covered in this case summary.

Issue: The first question posed to the Badinter Commission was whether the events in the SFRY would be categorized as the secession of entities from the SFRY, as claimed by Serbia, or the dissolution of the SFRY itself, as claimed by the other republics? Within this context, secession can be defined as the breaking off of territories from a non-imperial state to form new states while dissolution refers to the process by which a state dissolves into several states, with the former one ceasing to exist. This question basically challenged fundamental assumptions in international law regarding the criteria of new statehood transitioning from a de facto to a de jure situation and the relevance of recognition by other external states. Based on the Montevideo Convention of 1933, the state is simplistically defined as an entity with: a) permanent population, b) defined territory, c) government and d) capacity to relate with other states. The situation in the SFRY has clearly eliminated ...

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...o form a new democratic institution of their choice if they so wish to. The second opinion stipulates that the Serbian population in Croatia and Bosnia-Herzegovina is entitled to all the rights accorded to minorities and ethnic groups under the jus cogens of international law. Concurrently, the Republics must afford all the members of those minorities and ethnic groups all the human rights and fundamental freedoms recognized in international law, including, where appropriate, the choice of their nationality. While international law does not explicitly outline all the implications of the right to self-determination, the commission affirms that it is accorded so long as it does not involve changes to existing frontiers (uti possidetis juris) and it serves to safeguard human rights, in accordance with Article 1 of the two 1966 International Covenants on human rights.

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