Robert Badinter, president of the Constitutional Council of France
Roman Herzog, president of the Federal Constitutional Court of Germany
Aldo Corasaniti, president of the Constitutional Court of Italy
Francisco Tomás y Valiente, president of the Constitutional Court of Spain
Irene Petry, president of the Constitutional Court of Belgium
Between late 1991 and the middle of 1993, the Arbitration Commission handed down fifteen opinions pertaining to legal issues arising from the fragmentation of Yugoslavia.
On 20 November 1991 Lord Carrington asked if some republics seceded from SFRY, which, as Serbia and Montenegro had claimed, continues to exist, or did SFRY dissolve and all of the republics were equal successors to the SFRY. The commission replied on 29 November 1991 that "the Socialist Federative Republic of Yugoslavia is in the process of dissolution".
On 20 November 1991 Lord Carrington asked: "Does the Serbian population in Croatia and Bosnia and Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination?" The commission concluded on 11 January 1992 "that the Serbian population in Bosnia and Herzegovina and Croatia is entitled to all the rights concerned to minorities and ethnic groups[...]" and "that the Republics must afford the members of those minorities and ethnic groups all the human rights and fundamental freedoms recognized in international law, including, where appropriate, the right to choose their nationality". The opinion also extended the principle of uti possidetis to the former Yugoslavia for the first time.
On 20 November 1991 Lord Carrington asked: "Can the internal boundaries between Croatia and Serbia and between Bosnia and Herzegovina and Serbia be regarded as frontiers in terms of public international law?" Applying the principle of uti possidetis, the commission concluded on 11 January 1992 that "The boundaries between Croatia and Serbia, between Bosnia and Herzegovina and Serbia, and possibly other adjacent independent states may not be altered except by agreement freely arrived at." and "Except where otherwise agreed, the former boundaries become frontiers protected by international law."
In this opinion, the Commission was asked whether the independence of Bosnia and Herzegovina should be recognised. The Commission decided that it should not at the time, because unlike the other republics seeking independence, Bosnia and Herzegovina had not yet held a referendum on independence.
In this opinion, the Commission considered the application of Croatia for the recognition of its independence. The Commission ruled that Croatia's independence should not yet be recognized, because the new Croatian Constitution did not incorporate the protections for minorities required by European Community. In response, to this decision, the President of Croatia wrote to Robert Badinter giving assurances that this deficit would be remedied, and given these assurances the European Community recognized Croatia.
In this opinion, the Commission recommended that the European Community accept the request of the Republic of Macedonia for recognition, holding that the Republic had given the necessary guarantees to respect human rights and international peace and security. However, the EC was initially reluctant to accept the recommendations in this opinion because of Greek opposition.
In this opinion, the Commission recommended that the European Community recognise Slovenia.
In this decision, the Commission rejected Serbian and Montenegrin objections to its competence to respond to three references it had received from Lord Carrington, which resulted in Opinions 8, 9 and 10.
In this decision, the Commission decided that the legal process of the dissolution of the SFRY had completed, and that hence the SFRY no longer existed.
In this decision, the Commission considered how the problems of state succession resulting from the cessation of the SFRY should be resolved. It ruled that they should be resolved by mutual agreement between the several successor states, with an equitable division of the international assets and obligations of the former SFRY. It also decided that the membership of the SFRY in international organizations could not be continued by any successor state, but that each state would have to apply for membership anew.
In this decision, the Commission ruled that the FRY (Serbia and Montenegro) could not legally be considered a continuation of the former SFRY, but was rather a new state. Thus the European Community should not automatically recognize the FRY, but apply to it the same criteria to be applied to the recognition of the other post-SFRY states.
The text of the first ten opinions of the Badinter Commission has been published in the European Journal of International Law. Opinions 1-3 are reproduced in 3 EJIL 1 (1992) pp. 182ff (available online or for free at ). Opinions 4-10 are reproduced in 4 EJIL 1 (1993) pp. 74ff (available online).
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.
Radan's 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. Radan argues 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. According to Radan, 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, he 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 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" and that in redrawing the new borders between independent states "it may even be necessary to facilitate orderly and voluntary transfers of parts of the population."