YUGOSLAV FEDERALISM - UNSUCCESSFUL MODEL OF A MULTINATIONAL COMMUNITY

Slobodan Samardzic

Institute of European Studies, Belgrade
Fribourg, April 1994

Federalism is now generally accepted as the type of state organization for communities which have some marked characteristic of complexity. These are communities which are made up of more than one politically significant group - smaller communities, whether they are compact according to language and ethnic characteristics (as is the case with Belgium), territorially determined (as is the case with the United States) or a combination of their ethnic and territorial characteristics (the case of Switzerland). During the past two centuries, federalism has been shown to be successful in realizing two basic goals of such complex societies: maintaining the unity of the common state and protecting the particularities of the smaller communities.

Experience shows that the only federations which have failed are those which had socialist (communist) social and state systems. But, in addition to this common feature (a socialist system), they had one more identical characteristic: they were multiethnic federations in which the federal units were also the national states of the leading nations. With the demise of communist rule, the federative arrangements also fell apart, as did the states themselves. New ones were created on exclusively ethnic-historic foundations. The Russian Federation and the Federal Republic of Yugoslavia (SRJ), the federative remnants of the former larger federations, have not yet stepped onto stable democratic and constitutional ground. Relations between the new national states are full of potential conflicts, above all because of unresolved territorial and minority problems. However, the worst epilogue to the breakdown of these federations occurred in the former Yugoslavia. Its three central peoples - the Serbs, Croats and Muslims - are resolving their disputes by means of war. Far from the deafening media simplification of these problems, the point in question is a complex interweaving of causes and circumstances that has a historical origin and new contemporary manifestations.

We will occupy ourselves with the nature of the conflict that brought about the breakdown of Yugoslav federalism, its political consequences and the preconditions for its fundamental and lasting resolution.

The Nature of Yugoslav Federalism

Regardless of the constitutional form and type of state organization, the basic political substance of the Yugoslav state had always been related to inter-ethnic relations. Moreover, viewed historically, the central European concept of the nation, in which belonging to a language, religious or ethnic group precedes belonging to a specific territorial-legal order, has always prevailed here.1 The nation as a group of legally equal individuals, regardless of ethnic identity, never represented the reality of the Yugoslav state, both the one between the two world wars and the one between the two civil wars. In political, scholarly and colloquial use, the nation had always represented a concrete ethnic group and only one that had so-called constitutive status in the state according to existing constitutional doctrine - Serbs, Croats and Slovenes in unitary Yugoslavia, while the Montenegrins and Macedonians were added to the aforementioned three in federative Yugoslavia, as well as the Muslims as of 1971. In federative Yugoslavia, other ethnic groups had the status and designation of national minorities and then nationalities as of 1971.

After the breakup of unitary Yugoslavia at the very beginning of the World War II occupation, the renewal of this multinational state after the war was conceivable only in a new federative form. The key to state renewal was found in a specific mixture of communism and federalism. Communism represented the basic principle of the political system and federalism the basic principle of state organization. The two main complexes in post-war Yugoslav politics were fulfilled in this specific political juncture: the complex of totalitarian power held by the communists as the political victors in the war and the national-ethnic complex that had been kept under control by the unitary system and the centralist-integralist policy of the political ruling elite in the pre-war period. The strong link between these two complexes removed from post-war Yugoslavia's political scene two political corpuses which had played a significant role in the pre-war and war period - the national- chauvinist and the civic-democratic.

Therefore, the Yugoslav federation did not have its foundation in political units of historical origin which could unite into a federation through mutual state agreements similar to those which had brought about the formation of the Swiss or American federations. The historical basis for Yugoslav federalism is completely different: on the one hand, it is made up of "nations" as ethnic groups, of which only one - the Serbs - had recognized state-legal status (Serbia and Montenegro as internationally recognized states after the Berlin Congress of 1878) prior to the foundation of the common state in 1918; on the other hand, the political creator of federalism was the communist party, which had put the resolution of the so-called national question at the center of its program and activities even during the interwar period. These two characteristics were the foundation of Yugoslav federalism until its disintegration with the breakup of the state in 1991.

The Yugoslav federal units - republics - were created on the basis of mixed ethnic and historical criteria after the communists, as the leaders of the victorious war against the occupiers, established their total power in the country. The application of purely ethnic criteria was impossible because the population was ethnically mixed in many parts of the country (on over 40 percent of the territory). The federal unit of Bosnia-Herzegovina, where three peoples with constitutive status lived - the Serbs, Croats and Muslims - was created on the basis of historical criteria. However, the historical criterion was arbitrarily used in the creation of the autonomous province of Vojvodina in Serbia, while the other autonomous province in this republic - Kosovo-Metohija - was created on the basis of an unique ethnic principle relating to the majority population of one constitutional national minority - the Albanians. If the same criterion had been consistently applied, some of the other federal units would also have had regions with territorial autonomy. Istria in Croatia could have become an autonomous province on the basis of historical principles, as well as western Macedonia on the basis of ethnic criteria applied to a constitutional minority in the case of the Macedonian Albanians.

Such constitutional-organizational incoherence is a consequence of the basic internal strategy of the ruling communists which treated the national question as unexhausted material for political arbitration. Within the framework of federalism established in such a manner, where all political questions were gradually reduced to problems of inter-ethnic relations, they could freely establish an authoritarian balance, which was the main tool that they used to rule this multinational state from its beginning until the very disintegration of the federation. The quiet internal evolution of the constitutional and political status of the provinces in Serbia from territorial autonomy to constitutive elements of the federation, with all of the consequences that this had for Serbia's federative status, best illustrates the political background to the prevailing practice of balancing inter-ethnic relations.

Federalism could not fulfill its democratic goal within the framework of a political system of total rule by one party. Its democratic deficit in Yugoslavia was twofold. On the one hand, it was introduced in order to satisfy the political aspirations for statehood of the majority of Yugoslav nations and the political form of this statehood was obviously in the background. On the other hand, the system of governing never allowed the federative state form to receive any element of constitutionalism (without which modern federalism is unthinkable) during its evolution. The constitutional system of federalism did not guarantee either basic rights and freedoms or legally limited government during its entire existence. Instead, federalism was imbued with socialism (later its specific version of so-called self-managing socialism) as an ideology and state system. In such conditions, federalism could not develop its autochtonous integrative power, but rather depended upon the integrative power of the dominant political factor - the monopolistic party. As with its genesis, its evolution, structure and functioning had always depended upon the basic conception of inter-ethnic relations within the ruling party. It initially satisfied the nations' aspirations to statehood through the form of federalism, while it strove to keep this form under its control in order to secure its political domination with this powerful instrument in a multinational state.

Despite strong national-ethnic legitimacy, the Yugoslav federation was never, at least not in its constitutional conception, a simple sum-total of national-ethnic states. Three factors contributed to this: firstly, the integrative effect of the ruling party; secondly, the mixed makeup of the population in all of the federal units; thirdly, the constitutional status as constitutive peoples of the federation (therefore, on the federal level) of all of the Yugoslav nations.

As a monopolistic political party in the state, the communist party was both the creator and destroyer of federalism. The integrative function of the party had a match in the centralistically organized federalism until the middle of the 1960s. The federalization of the party, quite consistently, was reflected in the state decentralization which stopped at the level of the federal units. Lastly, the internal disintegration of the party in the late 1980s brought about the disintegration of the federation and the state itself. This evolutionary process of party corrosion was not accompanied by a strengthening of civil society and legal statehood, which was the only thing that could have contributed to a strengthening of the internal forces of federalism in the existing conditions. On the contrary, the weakening of the centralistic force of the party brought about the loss of the integrational link between the federal units, so that federalism assumed an anarchoid form during the last decade.

But, because of the other two factors - the mixed makeup of the population and the constitutive status of the peoples on the federal level (i.e. the status that the federal constitution gave them) - federalism could not disintegrate along the lines of the federal units until parties with explicitly nationalistic political programs did not win free elections in the republics. Namely, in all post-war Yugoslav constitutions, members of the constitutive peoples (nations) had equal legal and political status throughout the country, regardless of which federal unit they lived in. They all had their so-called mother republics, but they also had equal protection throughout the territory of Yugoslavia as members of distinct nations. The federal units were the national states of individual nations, which was expressed in the republics' constitutions, but only within the framework of the federation as a whole.

This complex and considerably contradictory character of federalism can be perceived in its constitutional conception contained in the last Yugoslav constitution of 1974.

This constitutional conception had the goal of establishing a new balance between republican and provincial sovereignties and the political domination of one party. The constitutional declaration about "working people, nations and nationalities" who "realize their sovereign rights in the socialist republics and in the socialist autonomous provinces" (Basic Principle of the Constitution of the SFRJ, I) expressed in a specific ideologized form the political decision by the true sovereign, the ruling party, for a new type of federalism which would function as a form of pluralized nationalism with a party monopoly at the forefront. The ideological wrapping of self-managing federalism was to cover up, i.e. ideologically legitimize, this new practice of federation. Federalism is narrowly linked to the so-called self-managing production relationship and, as a form of state organization, it should have been an expression of the entire self-management system. Accordingly, just as the actors in the self-management system - and according to official terminology, this is the working class organized by self-management - realized free social integration on the basis of constitutional mechanisms of self- managing agreement and social negotiation, the federal units - the republics and provinces - achieved state integration through mutual agreement on the federal level. The ideological originality of this conception of federalism cannot be sufficiently perceived without insight into the political-historic context of Yugoslavia's specific socialism, which had already developed under the complete control of the sovereign for three decades. Just as Yugoslavia had found the key to the historical emancipation of the working class in the self-management system, it found the key to the historical emancipation of both its nations and its national minorities in the self-management model of federalism.

The function of this thick ideological layer of the constitutional conception of federalism was to cover up the national-ethnic content that federalism (partially constitutionally, but above all factually) had been reduced to. Self-management, as a social relationship and a democratic system of "government of the working class" and all "working people", likewise represented the ideological wrapping of the factual rule of the "political avant- garde" - the League of Communists. These two ideological layers were therefore to have legitimized the state in which "the working class, above all within the framework of its nation, should control value surpluses" and only then, in accordance with the conception of self-managing federalism, enter integrational relations with "the working classes of other nations".

Therefore, the federal units should have been completely transformed into the national states of their leading nations, while the federation should have been the place for them to agree on common interests and service their needs that they realize on the federal level. The entire institutional system of the federal state was adapted to enable such functioning. The federal assembly consisted of two parital houses (the Federal Chamber and the Chamber of Republics and Provinces) and both were chosen by the complicated mechanism of indirect election. Every aspect of the elections was under the control of the League of Communists. All federal bodies other than the federal government were also parital and decisions were made by agreement, with the republics and provinces possessing veto rights. The appearance of strong centralization gave the federal government a large amount of authority (well-known article 281 of the SFRJ Constitution, which is almost as long as the entire constitution of the US), but the federation was both constitutionally and practically unable to carry them out.

From the very beginning, the constitutional conception of consensual federalism was transformed into a parallel system of secretive competition among the republican and provincial political elites, which actually represented their nations without democratic legitimacy and without any public control. Self-managing and consensual federalism was actually an authoritarian and combative federalism which disintegrated under the first assault by openly and publicly formulated nationalism at the end of the 1980s.

The Disintegration of Yugoslav Federalism

As an authentic socialist (communist) federalism, Yugoslav federalism was very far from two of the main characteristics of a modern federation: it did not contain elements of either federative association or constitutionalism. Arising after the disintegration of a unitary multinational state directed by authoritarian political forces and as a mechanism for the constant political instrumentalization of inter-ethnic relations, it was unable to facilitate the democratic evolution of either the social or state systems. The last constitutional system of 1974 recognized only two political actors - the ruling party and the nation as a collective ethnic monolith. The idea of constitution was not in keeping with modern constitutionalism; the constitution was not based upon the inalienable rights of the individual and the constitutional rights of the federal units, but rather on the authoritarian command power of the initially centralized, and then federalized, ruling party.

The political crisis of the state during the second half of the 1980s was actually the immanent crisis of federalism, i.e. its concrete constitutional model. This crisis could be overcome only with an alternative model of federalism, not one taken over from the existing experience of the federative system, but only by one that proceeded from concrete historical foundations and real Yugoslav pluralism. But, whatever model this may have been, it would have had to contain minimum starting principles and norms of modern federalism: constitutional guarantees of basic rights, the constitutive rights of federal units and minority rights. However, no one offered such a model, although it is questionable whether it would have had a chance to succeed in a situation of complete ethnification of politics.

The crisis of Yugoslav federalism was essentially a crisis of inter-ethnic relations. As such, it was only partially a crisis of relations between the federal units since their borders did not coincide with the ethnic makeup of the population. With the exception of Slovenia, a relatively ethnically homogeneous republic, the republics were relatively heterogeneous. There were regions in Croatia with a compact Serb majority; in Bosnia- Herzegovina, the Croat, Serb and Muslim populations were mixed; in Serbia, there were two autonomous provinces with compact minorities - the Hungarians in the north of Vojvodina and the Albanians in Kosovo-Metohija; in the Sandzak, which belongs to Serbia and Montenegro, half of the population was Muslim; finally, a compact Albanian population lived in the western part of Macedonia. In addition, in the large cities (Belgrade, Zagreb, Novi Sad, Skopje, Osijek, Zadar and others), many members of other nations lived next to members of the majority nation and more or less did not feel like minorities. The large population group that declared itself Yugoslav (around five percent of the population) and was also concentrated in the larger cities throughout the country also cannot be neglected.

In addition to this territorial aspect, there existed a constitutional corpus of "acquired rights" which diluted the idea of the republics as the national states of only one people. In Croatia, Serbs had the constitutive status of a people equal to the Croats; in Bosnia-Herzegovina, the Serbs, Croats and Muslims had equal constitutional status; the Albanians viewed the province of Kosovo, which had received a majority of state attributes similar to the republics, as their federal unit, even though it was not defined as such in the constitution. As mentioned, at the federal level, all of the peoples (not the national minorities) enjoyed constitutive status and therefore more or less had the feeling of belonging to one state.

All of these historic, political and state-legal circumstances supported the idea of a democratic federation and pluralistic democracy rather than state division either on the basis of federal units or ethnic homogenization. Because, in the first case of division according to the criterion of federal units, which would be based upon the idea of pure national states, parts of the remaining "non-state nations" would be left without rights which they had previously possessed. The second case - ethnic homogenization - would bring about the violent establishment of homogeneous ethnic territories where this was not historically the case. Both variants meant a violent, and even war, option if they were to be imposed one-sidedly. This is what happened in Yugoslavia: first by the secession of two republics - Slovenia and Croatia - and then by the international recognition of all republics that sought this recognition on the basis of the criteria of the European Community (in other words, the acceptance of the first variant).

The breakup of the Yugoslav federation created the problem of new minorities; for this the international community did not have a solution. The phenomenon of new minorities illustrates the nature of the entire problem and its unsolvability in the context of international standards on minority protection and especially in the context of international mediation in the Yugoslav crisis. The point in question is the people who became minorities against their will (according to the will of the main actors of the breakup) after the disintegration of the state or resist this, as is the case with the Serbs in the former republics of Croatia and Bosnia- Herzegovina. The basic problem is certainly disrespect for the political will of the people and the violent imposition of a new state framework in their lives. Viewed from another angle, the problem is that ethnic, and not constitutional-democratic, states were created by secession and international recognition. These states were not created on the basis of democratic consensus, but rather on the basis of ethnic majority within the framework of the former federal units. In this manner, one substantial right - the right of ethnic groups - was promoted to an exclusive state right. All other groups that do not possess this substantial right - the right of Slovenes, Croats, Muslims, Serbs - become minorities simply because of the political majorization of their previously sovereign wills. Their minority rights cannot therefore be part of the universal system of human rights because such a system of rights does not initially exist. In the best case, they can only be separate rights within the framework of domination of exclusive state ethnic rights.

By recognizing four republics from the former federation, the international community allowed these consequences of the distorted application of the principle of the right of people to self- determination. Firstly, it was accepted that a people is an ethnic group which exclusively seeks its own state territory with the borders of the previous federal units; and then, completely consequential, the same right (to self-determination) was not recognized for some of the peoples who had until then experienced it within the framework of those same federal units. The right to self-determination was separated from the corpus of basic rights and interpreted as the abstract right of an homogeneous group, moreover as the automatic right to found a state, which, completely outside of the spirit of the principles of liberal democracy, separated the political freedom of a people from the political freedom of the individual.

The reaction of the unwillingly newly created minorities in the former Yugoslav federation, above all the Serbs in Croatia and in Bosnia-Herzegovina, but also the Croats in Bosnia-Herzegovina and the Muslims in Serbia and Montenegro, is completely in keeping with this game of violence against the norms and principles of state and international law. Their response was identical: the creation of their own ethnic states on territory which they consider historically theirs. The territorialization of ethnic substantive rights is a general consequence of the disintegration of Yugoslav federalism and it is now exceptionally difficult, if not even impossible, to integrate any existing international legal standards on minority rights and protection into this process. The consequences for the newly created minorities (as well as the "old ones") in all of these state creations, whether they are internationally recognized or not, are the same: their members are second-class citizens everywhere. The general position of all minorities after the disintegration of the federation is that none of them want to be a minority.

From a Multinational State to Multiple National States

The epilogue to the Yugoslav state crisis is found in the creation of many national states on the territory of a previous multinational state and federation. The contradictions of the ethnic state with unresolved territorial and minority questions left open military conflicts in the former republics of Croatia (Krajina) and Bosnia-Herzegovina, as well as latent ethnic conflicts in the former republics of Serbia and Montenegro (Kosovo and the Sandzak) and Macedonia (western Macedonia). The Serbs have founded their own national states in Croatia and Bosnia-Herzegovina - the Republic of Serb Krajina and the Serb Republic. This newly created state mosaic is legitimated on the expressed will of the people to live in their own exclusive national states. Plebiscitary declarations which were generally reached through the majorization of minority peoples were arranged to that purpose in almost all of the former republics.

Judging by the constitutions of all of the newly created states that have written them - Croatia, Slovenia, the Federal Republic of Yugoslavia (the federation of Serbia and Montenegro), Macedonia - they are all democratic and legal states based upon the sovereignty of citizens, human and minority rights, modern democratic institutions and the rule of law. National titular statehood - of the Croat, Serb, Montenegrin and Macedonian people - is only mentioned in the preambles of the constitutions (in the case of the Federal Republic of Yugoslavia, in the preambles of the constitutions of the federal units of Serbia and Montenegro). The decrees on human, political and minority rights are on the level of international democratic standards, which especially leads to the thought that positive constitutional formulations and norms are not problematic, while the essence of the problem cannot be found in them.

Therefore, what is missing in the national states on the territory of former Yugoslavia is not democratic words in the constitution as a written document. They are above all defective in the democratic and procedural legitimacy of their foundation as national states. This democratic deficit in their foundation can be viewed on many levels and all of these levels represent accumulated negative experiences, which will burden both the internal organization of the newly formed states and their mutual relations for a long time. These are the following, not just undemocratic, but directly antidemocratic, characteristics of the formation of all of the national states on the territory of the former Yugoslav federation:

a) All of the states were formed as the product of inter-ethnic conflicts or internal ethnic civil war.

b) The creation of the states was preceded by the heedless and violent destruction of the common state (federation) and disrespect for the constitutional norms of that state.

c) The new states were founded without democratic consensus, on the basis of ethnic homogenization and political majorization of the so-called non-constitutive (non-state) peoples.

d) The main political role in the creation of the new states belonged to authoritarian-populist and nationalist parties.

e) The new state mosaic came about with large help from the international community, which violated its own principles and norms, above all those related to the right of peoples to self- determination, the territorial integrity of states and the unviolability of state borders, by recognizing initially two, and later two more, republics.

These examples of the deficit of democratic legitimacy of the new states do not apply equally to all of the states. For instance, Macedonia could be amnestied from aspect a), Slovenia from aspect c) (thanks to its relative ethnic homogeneity), and the Federal Republic of Yugoslavia from aspect e). But each of them has enough violent, authoritarian, populist and illegal elements included in the process of their creation to allow a general judgment of the defectiveness of their democratic legitimacy.

Of all of the former Yugoslav republics, only Serbia and Montenegro have remained in federative state ties. The reasons for this are mainly historical, since they are two Serbian national states which had international subjectivity before the foundation of Yugoslavia in 1918. The federative form of the common state is more the consequence of historical and international-political reasons than internal democratic organization. The reasons for internal and external state continuity, such as the ethnic closeness and historical ties between the two people (and two states), have not permitted state separation in the case of these two republics of the former federation. Otherwise, in the situation of ethnic conflict and war in Croatia and Bosnia-Herzegovina which resulted from the creation of a Serb corpus separatum in both former federative units, the new federation (the Federal Republic of Yugoslavia) represents the basic referential framework for the will of the Serbs as expressed through referendums. Therefore, both the new federation and the Serb state creations in Croatia and Bosnia- Herzegovina are the expression of that same internal logic of events by which the other national states on the territory of the former Yugoslavia were created (and internationally recognized). However, for now, judging at least by the constitutional organization of the Federal Republic of Yugoslavia, where there is obviously a shortage of democratic and procedural legitimacy, as well as by the way that the new federation functions, the chosen state form (federation) does not produce any democratic advantages over the internal organization of the other states.

The federative state form is also mentioned in the arrangements made by the international mediators in devising a political solution to the ethnic and later military conflict in Bosnia- Herzegovina. The European Community's so-called Cutillero plan in February 1992 defined this former republic as "a state with three constitutive units based on the ethnic principle" and intended it to have a federative structure (division of power between the union and the units, a bicameral parliament, etc.). This plan was rejected by the Muslim side because of its unitaristic orientation. After the war began, various political solutions with federative arrangements were offered which were rejected by the sides in the conflict. The last such proposal, which was accepted by two of the sides in the conflict, was the Agreement establishing a federation in areas of the republic of Bosnia and Herzegovina. The Agreement refers to two of the warring sides - the Muslims and the Croats - and, accordingly, the corresponding territory of this former republic. This Agreement, which provides for the principles and institutions of the Muslim-Croat Federation, followed the so-called Preliminary Agreement for a confederation between the Republic of Croatia and the Federation (the Muslim-Croat Federation in former Bosnia-Herzegovina). However, there are many reasons why it is not necessary to now delve any deeper into the concrete solutions offered by these agreements. The basic reason is the extreme political uncertainty of their effective realization by those who have signed and formally accepted them.

Lastly, it is necessary to mention the peace plan of the so-called Contact Group of great powers which intends to bring about a complete political solution to the three-sided conflict in Bosnia- Herzegovina. In its proposed constitutional solution, this plan provides for a union of "two political entities" - the Muslim-Croat Federation and the Serb Republic - within the framework of internationally recognized Bosnia-Herzegovina. The June 1994 version of the plan was rejected by the Bosnian Serbs because their political unit did not receive equal treatment with the Muslim- Croat unit (the non-existence of the guaranteed right to confederal links between the Serb Republic and the Federal Republic of Yugoslavia modeled upon the Preliminary Agreement on confederation between the Muslim-Croat unit and the Republic of Croatia), as well as their dissatisfaction with the offered territorial solution.

These agreements and proposals, as well as the solutions that were offered with them, were the result of international pressure upon the actors in the conflict. If one has in mind the basic reason for the disintegration of the Yugoslav federation - the aspiration of its constitutive peoples to create their own national states - then the necessary mediation must begin with the principle of equal treatment of all sides in the conflict. The equal application of the right to self-determination to all peoples of the former federation must, in that sense, precede every concrete political arrangement.

The Possibility of Reintegration on the Territory of the Former Yugoslavia

Until a few years ago, the idea that the national state with its corpus of sovereign rights can no longer satisfy contemporary demands for general linkage and internationally coordinated development was widespread. The trend toward new principles of international relations and corresponding institutions and alliances appeared to be an irreversible process. In only a few years, twenty or so new national states were created in Europe alone, the cradle of modern national states and new processes of supranational linkage. A process working in the opposite direction intervened in the general course of the transcending of classical state forms in international politics. Unexpected problems arose, such as minority protection. The universality of human rights and their international codification was concretized as the omnipresence of the problem of minority rights and their protection on the basis of generally accepted standards. This problem would not be so present and acute without the creation of the new national states.

The most obvious example of this practical problem of European modernity is the disintegration of the Yugoslav multinational federation. The road to modernization was sacrificed, at least temporarily, for the sake of strong symbolic goals such as the creation of one's own national state. Weapons replaced agreements and sophisticated diplomacy. This became the most sure means of the omnipresent defense policy. Of course, the point in question is the defense of general national interest seen as the interest of creating independent national states. In complex Yugoslavia, even the setting of such a goal - the creation of independent national states - presupposed the inevitability of violent methods in its realization. The paradox of European policy is that it approved of the goal while condemning the method. But the method could only be avoided by not accepting the goal, or at least by setting it differently.

By destroying their common state, the Yugoslav peoples have all made a civilizational step backwards, if looked at within the European framework. On the contrary, if they do not want to remain outside of this framework for a long time, their strategic development must fit into it. This will be impossible without elementary mutual links and coming closer together (again), this time on completely different foundations - on the basis of their independent statehood. Therefore, despite the drastic experience of separation and enmity, some forms of reintegration of the territory of former Yugoslavia seem inevitable even in the nearest future. Because of the current state of their relations, reintegration is possible only under certain conditions and in a few successive phases:

The first phase is the establishment of general peace. Viewed structurally, this problem cannot be solved without completion of the process of forming national states on the territory of the former Yugoslavia. The main cause for the disintegration of the federation and the logic of events conditioned by it must be brought to an end. It would also be overly unrealistic to expect the international community to withdraw its decision to recognize the new national states or that the Serbs in the former federal units of Croatia and Bosnia-Herzegovina will voluntarily agree to an unequal status. Since these two things are in direct opposition, the only peaceful way to gradually bring them into line is through direct negotiations between the legitimate representatives of all sides involved about all conflicting questions, accompanied by impartial aid and cooperation from the international community. The point in question is to reach a negative peace (peace as the absence of war) as a precondition for the realization of the other two phases, after which complete and irreversible positive peace can be established.

The second phase would consist of the subsequent process of democratic legitimation of the new orders. Due to their nature and the manner in which they came about, the newly established orders are not and cannot be democratic. Receiving democratic legitimacy post festum is necessary because it is impossible to bring the entire process back to an ideal beginning. The new orders can be democratized only through a new evolutionary internal process. Such an evolution requires a weakening of the political significance of the ethnic (national) question to the advantage of the process of general modernization - political, economic and cultural. Instead of monolithic ethnic communities, the process of autonomization of society would begin, instead of defensive ethnic states - constitutionally limited and controlled political power, instead of exclusive rights for the ruling nation - basic rights and freedoms for the individual. Active minority rights and protection would serve as an index of the level of democratization that has been achieved.

The third phase would consist of the process of institutional reintegration of the entire territory of the former federation. It would be carried out on the basis of interest and agreement. It is completely certain that modern imperatives of linkage and cooperation - economic, political and cultural - would stand in the background of this process, but because of the delicateness of the historical past it is unusually important that the process itself develop on a voluntary and democratic basis so that the established ties and institutions would have a strong and secure basis. The dynamics, areas and forms of association (reintegration) would be completely open. It is probable that transportation, trade and customs exemptions would be the first forms of this inter-state consensual association, which would be followed by other fields of economic life, as well as media and cultural exchange. The entire process would receive various institutional forms, including various types of alliances between individual states or between all of them.

These phases do not have to be a strictly successive series; the point in question is, therefore, not just the diachrony of events, but also the synchrony of the preconditions for the effective reintegration of the territory of former Yugoslavia. It is nevertheless certain that the fate of the second phase (internal democratization) greatly depends upon the successful resolution of the first (preconditions), i.e. general peace, as well as that the third phase (precondition), i.e. institutional reintegration, greatly depends upon the efficacy of the process of internal democratization.

After two experiences of common statehood - a unitary monarchy and a socialist federation - which were followed by two civil inter- ethnic wars, voluntary association of the new national states is the only basis for the peaceful coexistence of the peoples in this part of Europe.

Notes:

For the difference between the personal and territorial concept of the nation in Europe, see Uri Ra'anan, "The Nation-State Fallacy", in Conflict and Peacemaking in Multiethnic Society, ed. by Joseph Montville, Lexington Books, Massachusetts/Toronto, 1990, especially p. 13ff.

The criterion for differentiating between nations and national minorities, i.e. nationalities, was whether the specific ethnic group had a mother national state outside of Yugoslavia, as was the case with Albanians, Hungarians, Romanians, Bulgarians and others. The intention was to directly and indirectly point out that nations for which this was not the case realize their national statehood within Yugoslavia, i.e. in its republics.

This particular symbiosis of federalist ethno-communism had its clear inter-ethnic equivalent. In contrast to the period between the two world wars, when the Serbs were practically the only people loyal to the system since their national interest of living in a united state had been fulfilled for the first time in history, during the post-war period this state loyalty was also demonstrated by the other "constitutive peoples" - the Slovenes, Croats, Muslims and Macedonians - because they had received their own national states for the first time in the form of their respective federal units. The position of the Montenegrins was unique in that this people received constitutive status as a newly formed nation in the new federation. Namely, until 1918, Montenegrin statehood, which was internationally recognized, was based upon Serbian national identity and state tradition. Montenegro was as much a Serbian state as Serbia itself.

The Communist Party of Yugoslavia's conception of the national question was a mixture of Austro-Marxism and Leninism. On the one hand, the nation was defined with the help of cultural and ethnic characteristics. In this regard, Austro-Marxist Otto Bauer's conception was a great influence (particularly his 1907 book Nationalitaetenfrage und Sozialdemokratie) and especially his definition of the nation as a fate community based upon common character (see the second edition, Wien, 1924, p. 109ff). On the other hand, the Yugoslav communists did not accept Bauer's solution of the national question in a multiethnic state on the basis of cultural autonomy, but rather used Lenin's principle of the right of nations to self-determination short of secession, which led to the creation of national territorial units with state characteristics. The communists demanded the breakup of Yugoslavia on this conceptional basis during the interwar years and formulated the idea of Yugoslavia as a federative state during the second world war.

As early as the middle of the 1960s, Carl Friedrich called Yugoslav federalism "facade federalism"; see his book Trends of Federalism in Theory and Practice, Praeger, New York, 1967, p. 162-168.

Both the federal constitution and the republican constitutions of 1974 speak of the right of peoples to self-determination, including secession. Article 3 of the federal constitution and the corresponding articles of the republican constitutions define a republic as "a state founded upon the sovereignty of the people", but not just of the so-called constitutive peoples, but rather all of its inhabitants. Each republic's constitution specified its state-building people (for example, the Slovenian, Serbian, Macedonian, Croatian people), but each republic was as a rule also designated as a state of other peoples and nationalities; in the case of Bosnia-Herzegovina there were three constitutive peoples - the Serbs, Muslims and Croats - while Croatia's constitution defined this republic as "the national state of the Croat people and the state of the Serb people in Croatia" (Article 1, Item 2 of the 1974 Constitution of the Socialist Republic of Croatia). These confusing and contradictory constitutional elements (the right to self-determination short of secession, peoples as holders of this right, republics as national states) could somehow be kept together only while the common statehood of the federation existed. At the moment when it began to disintegrate, different interpretations (both scholarly and political) of the rights of peoples (and republics) were inevitable.

This type of federative principle of agreement is expressed in the section of the Constitution on Basic Principles in the following manner: "Working people, nations and nationalities make decisions in the federation based upon the principles of agreement by the republics and autonomous provinces, solidarity and reciprocity, equal participation by the republics and autonomous provinces in federal bodies, in keeping with this constitution, as well as the principle of the responsibility of the republics and autonomous provinces for their own development and the development of the socialist community as a whole."

Let only one quotation serve as an illustration. It is from one of the numerous books by Slovene politician Edvard Kardelj, the main creator and ideologue of self-managing socialism and self-managing federalism, from the time when this ideological spiritus movens of Yugoslav socialism was devising this conception of federalism, which was integrated into the last constitution: "In short, today's Yugoslavia is no longer a classic federation, nor can it be a classic confederation, but rather a socialist self-managing community of peoples, which is an essential new category in inter- ethnic relations". Edvard Kardelj, Raskrsca u razvitku naseg socijalistickog drustva (A Crossroads in the Development of Our Socialist Society), Komunist, Belgrade, 1969, p. 48.

Edvard Kardelj launched this ideological fiction in his works regarding the 1974 Constitution (see Osnovni uzroci i pravci ustavnih promena (Basic Causes and Directions of Constitutional Changes), Komunist, Belgrade, 1973) and many authors in the fields of constitutional law and political science, particularly in Slovenia and Croatia, accepted it as the starting basis for their theoretical works. See for example the book by Zagreb political scientist Zvonko Lerotic, Nacela federalizma visenacionalne drzave (Principles of Federalism in a Multinational State), Globus, Zagreb, 1985, p. 181ff.

I have written more extensively about this in Jugoslavija pred iskusenjem federalizma (Yugoslavia Before the Temptation of Federalism), Institute of European Studies, Belgrade, 1990.

In other words, through its proposals and resolutions, the European Community, as the international community's legitimate mediator in the Yugoslav case, considerably contributed to the appearance of the war epilogue to the state crisis. The Opinions of the Arbitration Commission of the International Conference on Yugoslavia, which formed the basis for the European Community's recognition of four republics as sovereign states, are characteristic of this careless erosion of a delicate multinational federation. The core of these Opinions was contained in the unique interpretation of the principle on the right of peoples to self- determination. This right was applied to the federal units, not the peoples, which was a violation of this international principle as well as the existing constitutional right of the Serbs in Croatia and Bosnia-Herzegovina to self-determination. They were declared minorities in these republics in Opinions 2 and 3. The internal borders of the federal units were declared borders as meant by international public law (borders of sovereign states), while the borders of Yugoslavia as a state were annulled. The reason for this is found in characteristic Opinion No. 1, which discusses Yugoslavia as a state "in the process of dissolution". But, such a typically political, instead of legal, opinion did not stop the Commission from calling upon the Constitution of that state "in the process of dissolution" in Opinion No. 3, where Article 5, Items 2 and 4 find a constitutional basis for the thesis on the inviolability of internal borders. Namely, these Items discuss the inviolability of the borders of federal units without their agreement. Item 3 of the same Article of the Constitution of the SFRJ, which discusses the inviolability of the borders of Yugoslavia as a state without the agreement of all federal units, is not mentioned in this context. This Constitution, although the constitution of a state "in the process of dissolution" according to Opinion No. 1, is considered valid when this fits a specific political decision and, consequently, invalid when not in accordance with this decision. The point in question was obviously political, and not legal, arbitration, which could not justly and in accordance with the norms and practices of international law mediate a peaceful resolution of the conflict (For the Opinions of the Arbitration Commission, see the journal "Medjunarodni problemi" (International Problems), No. 1001, Belgrade, 1992, p. 13-19. For professional-legal commentary on the Opinions, see Milenko Kreca's book Badenteriva komisija (The Badinter Commission), Jugoslavenski pregled, Belgrade, 1993).

The violent majorization of the basic rights of individuals and the equal rights of peoples is the main consequence of the so-called spring of nations in all former socialist federations. Comparatively, the breakup of the Czechoslovak federation can be seen as the smallest evil, smaller than the evil in the cases of the breakup of Yugoslavia and the Soviet Union in the measure in which the complexity of the problem was smaller. The West supported, and even helped, these breakups, taking into consideration only the nature of the regime (socialism), but not the nature of inter-ethnic relations. The media propaganda which accompanied these processes gave entire nations ideological designations if they would not accept breakup as the solution. The Serbs fared the worst, even though it was clear to everyone that they had the most to lose from the breakup of the common state.

The Albanians had such a political program within the framework of the autonomous province of Kosovo even before the general crisis of Yugoslav federalism. This constitutional concept of federalism within the framework of which autonomous provinces, although nominally a part of Serbia, had a large amount of state authority, worked in their favor.

In his study Ethnic Politics in East European Transition (New York School for Social Research, New York, 1992, p. 32), Claus Offe did a good job in formulating this paradox of the ethnification of politics on the entire territory of the former socialist states. He says that in the newly created situation it is especially difficult and practically impossible to draw a line according to which all rights of minorities would be fulfilled without violating some right of the majority at the same time. Of course, this paradox is most drastically manifest on the territory of the former Yugoslavia.

The Serbs in Croatia held their first referendum in August 1990 and voted for remaining in Yugoslavia, as well as autonomy in the region where they were ethnically compact (the Krajina). The referendum on an independent Slovenian state was held in December of the same year. The referendum on an independent Croatia was held in May 1991, while the referendum on an independent Macedonian state was held in September of that year. The Albanians in Kosovo organized a referendum on a sovereign and independent Kosovo the same month. The Bosnian and Herzegovinian Serb referendum on remaining in Yugoslavia was held November 9-10, 1991. The Muslims and Croats in Bosnia-Herzegovina voted for the state independence and sovereignty of this republic through the referendum held at the end of February and the beginning of March of 1992. At the same time (March 1), a referendum on remaining in Yugoslavia was held in Montenegro. It is interesting that only the republic of Serbia did not hold a referendum on the state question.

The case with individual laws which regulate sensitive state matters is different. The citizenship laws of Slovenia and Croatia have many restrictive regulations for citizens of non-Slovene and non-Croat nationality and thereby a discriminatory effect. Croatia had to change its original Constitutional law on minorities (of December 1991) at the explicit request of the European Community because of the absence of territorial self-government of the compact Serb regions and in order to bring it into accord with the requests of the Hague Conference on Yugoslavia document (The Constitutional law was adapted in May 1992). The Federal Republic of Yugoslavia has not yet passed citizenship or minority laws two and a half years after the proclamation of its new constitution.

The point in question is at least the forcible violation of Article 5 of the Constitution of the SFRJ on the unity of the territory of the SFRJ, and especially Item 3, according to which the borders of the SFRJ cannot be changed without the agreement of all of the republics and autonomous provinces. A consequence of this was the forcible violation of Items 2 and 4 of this Article, according to which the territories of the republics cannot be changed without their agreement.

This provisional state-political situation of the Serbs in the former federal units of Croatia (the Republic of Serb Krajina) and Bosnia-Herzegovina (the Serb Republic) has both a clear political expression in their open requests to join the new federation and a constitutional expression in the Constitution of the Federal Republic of Yugoslavia. Article 2, Item 2 of this Constitution contains the decree: "The Federal Republic of Yugoslavia may be joined by other member republics, in accordance with the present Constitution". The Item is very similar to former Article 23 of the Basic Law of the Federal Republic of Germany which provided for the validity of the Basic Law "in other parts of Germany after their acceptance of such".

The United States is the main creator of the Agreement and it was signed by Muslim and Croat representatives in Washington on March 1, 1994.

The point in question is not just the fact of the existence of two Serbian states on the territories of the former republics of Croatia and Bosnia-Herzegovina, but also the fact that the Serbs are an internationally recognized factor in the political resolution of the crisis (the Vance plan for Croatia and a series of international arrangements for Bosnia-Herzegovina). But this does not yet guarantee the equal treatment of their national question by the international community.

Fribourg, April 1994

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