12 April 2001, Volume
MONTENEGRIN INDEPENDENCE: WHAT THE LEGAL EXPERTS SAY.
Part II. (Part I appeared on 5 April.)
A roundtable hosted by RFE/RL's Srdjan Kusovac.
Belgrade law professors Vojin Dimitrijevic and Pavle Nikolic, and Podgorica law professors Milan Popovic and Nebojsa Vucinic are with us to discuss the legal aspects of the widely expected referendum on Montenegrin independence.
There appears to be no serious controversy among experts for international law. It seems that, as soon as Montenegro declares its independence -- if that indeed happens -- there will be far fewer problems on the international level than in internal affairs. Professor Nebojsa Vucinic of the Faculty of Law in Podgorica explains some terms often heard these days, such as "independent," "sovereign," and "internationally recognized Montenegro."
All the three terms have the same sense, the same substance. They all mean that a state is an independent factor in international law, that it has its own independent government, that there is no other superior government on its territory, and that it has been recognized by other states and international organizations.
This is why all the three terms have the same basic meaning, which is sovereignty, or the supreme power that is carried out in accordance with constitutional and international law. This is how the state exercises its power in domestic and international affairs, how it establishes relations with other states, etc.
The very first question one should ask in the event that Montenegro declares independence is whether Montenegro and Serbia should recognize each other.
A state exists and does not need to be recognized by other states if it claims that it exists and if some other conditions are met -- if it has the power over a certain territory and its population. However, a state that has not been recognized by other states simply cannot establish international relations, no matter how hard it claims that it does indeed exist. The best example of that is the [Turkish] Republic of Northern Cyprus, which has been recognized only by Turkey...
Bearing in mind that Yugoslavia exists as a state and that it has been recognized by other states, the secession of Montenegro and its appearance as a new state would become an issue. But Montenegro would not have to be recognized by Yugoslavia in order to be recognized by other states.
As a matter of fact, an original state often reluctantly recognizes a new [successor] state.... And there are different forms of recognition. One of them we know well. When the Federal Republic of Yugoslavia (FRY) was founded in 1992, for a long period of time it was said to be an unrecognized state. Formally speaking, it was not recognized by other states for very long time, but de facto it was recognized.... This is what might happen in the case of Montenegro.
As far as recognition is concerned, there is no such thing as a uniform procedure. A new state is usually recognized, especially if it is created in accordance with existing rules of international law. There is no obligation to recognize a new state. Recognition is nonetheless the normal precondition for establishing relations with that state.
If Montenegro were to declare independence, the present Federal Republic of Yugoslavia, which is actually a commonwealth of Montenegro and Serbia, would cease to exist. Logic tells us that in that case, Serbia and Montenegro would appear on the international political stage as new, independent states, which would have to apply for membership in the United Nations and wait for other states to recognize them.
However a completely different interpretation appeared in Belgrade two years ago, first stated by the then adviser of Slobodan Milosevic, Vladan Kutlesic. According to that interpretation, similar to the one that was popular ten years ago [in Belgrade when Slovenia and Croatia declared independence], "Yugoslavia would not cease to exist if one of its republics seceded."
So, do Serbia and Montenegro have to demand international recognition if the present state disintegrates? Is there a possibility that only Montenegro would become a new state, while Serbia would be the successor to the present FRY -- for example, in the United Nations?
Yugoslavia would probably remain a member of the UN while Montenegro would be treated as a new state.
Both of the solutions are possible. The solution suggested by Professor Dimitrijevic -- Serbia as the successor of the FRY -- would probably be the less painful one. We all know that from the very beginning [in 1992], the state called the Federal Republic of Yugoslavia suffered from a lack of...legitimacy. [Should Montenegro become independent], some pragmatic interests -- first of all political ones -- would prompt Montenegro to apply for membership in international organizations, anyway.
However, I do not consider the other solution a problem if an agreement is reached, especially if it were based on the platform proposed by the government of Montenegro.... As far as membership in the United Nations is concerned, Montenegro would probably apply in accordance with a possible pre-arranged agreement, like, for instance, the Czech Republic and Slovakia did [after the break-up of Czechoslovakia].
What remains unresolved should Montenegro become independent is the membership of the present Federal Republic of Yugoslavia in numerous international organizations like, for example, the OSCE, the IMF, etc.
These things have to be agreed upon. The trouble with the former Yugoslavia -- the Socialist Federal Republic of Yugoslavia (SFRY) -- is that it was the only case [of the now-divided, former multinational states] in which the member states failed to reach an agreement [on succession]. All the [pre-division legal agreements now] remain with the Federal Republic of Yugoslavia, but some of them could also be transferred to Montenegro. In other words, Montenegro would simply have to issue a statement explaining which agreements will remain in force, just like we are now [dealing with] which agreements of the SFRY the present Yugoslavia will keep in force.
There is a well-known principle that newly created states are bound by existing legislative agreements. I do not know exactly which agreements were concluded by the FRY, but all those of a legislative nature are binding for Serbia and Montenegro. But that is unlikely to be much of an issue since the FRY was isolated [and under sanctions for most of its existence].
For instance, what will happen with the Dayton peace accords, of which one of the guarantors is the FRY? And what will become of the lawsuits of Croatia and Bosnia-Herzegovina against the Federal Republic of Yugoslavia for genocide and aggression before the International Court of Justice in The Hague?
As far as the Dayton peace accords are concerned, I think that Montenegro should carefully decide what to do about them. The point is that Dayton is an agreement that resolves a specific issue regarding Bosnia-Herzegovina, and I think that Montenegro should make a political decision whether there is a political interest for that country to join such an agreement or not.
I think that Montenegro should be bound by that agreement because of its interest in preserving Bosnia-Herzegovina, since [a unified Bosnia] is an important factor for peace, stability, and [political] balance in the region. In this case, I think that Montenegro should accept the obligation to sign the Dayton peace accords.
As far as the lawsuit of Bosnia-Herzegovina against the FRY goes, that formally and legally is a suit against the FRY, but in reality it is primarily against Serbia. The presentation of evidence that took place before the International Court of Justice in The Hague is mostly directed against institutions and bodies of the Republic of Serbia concerning alleged violations of the Convention on Genocide. This is why I think that if Montenegro became independent, [it is unlikely that there will be charges against it], since it did not play any major role in the events that took place in Bosnia-Herzegovina from 1992 until 1995.
Montenegro might not be considered a defendant, but in case [the defense loses] and if a settlement has to be paid, Montenegro could not get out of it since it participated in all the things that we [in Serbia] are charged with.
How long could this legal wrangling over succession last?
A dispute usually takes place [even] in the best families if there is something to inherit. People are then amazed how selfish and unpleasant their sisters, brothers, and other relatives can be. Something like that might happen, but without the hatred and recollections of evil things that took place [as was the case with the secession of the other republics].