## Facts

- The European Community established an Arbitration Commission within the Peace Conference on Yugoslavia to provide legal opinions on disputes arising from the Yugoslav crisis.
- The Commission consisted of five constitutional court presidents from EC Member States, chaired by Robert Badinter.
- Several Yugoslav republics expressed intentions to become independent through referenda or legislative acts, while Serbia maintained the view that certain republics were seceding from a continuing federal state.
- Federal institutions and organs (including key political bodies and the federal army) were no longer functioning in a representative and effective manner consistent with a federal state structure.
- Armed conflict escalated among elements of the federation, and both federal and republican authorities proved unable to secure compliance with ceasefire arrangements.
- The President of the Peace Conference asked the Commission to characterize the situation as either secession from a continuing state or dissolution of the SFRY.

## Issues

1. Whether the situation should be characterized as secession by certain republics from a continuing SFRY or as dissolution of the SFRY.
2. What public international law criteria govern the continued existence or disappearance of a state, including in a federal-type state.
3. What legal effect recognition by other states has on determining whether a state continues or ceases to exist.
4. What general obligations follow for the republics regarding state succession if the SFRY is dissolving.

## Decision

- The Commission concluded that the SFRY was in the process of dissolution, rather than merely losing parts through secession.
- The Commission treated the existence or disappearance of a state as a factual matter and stated that recognition by other states has declaratory (not constitutive) effect.
- Applying statehood criteria to a federal-type state, the Commission emphasized that continued existence requires federal organs that represent the components of the federation and exercise effective power.
- The Commission found that Yugoslavia’s federal organs no longer met standards of representativeness and effectiveness and that the breakdown of authority and armed conflict supported a finding of dissolution.
- The Commission stated that the republics must settle state succession questions arising from the dissolution in accordance with international law, with particular regard for human rights and the rights of peoples and minorities.

## Legal Principles

- State existence or disappearance is determined by objective facts; recognition by other states is declaratory.
- A state is commonly understood as a community consisting of territory and population subject to organized political authority, characterized by sovereignty.
- Constitutional structure and internal organization are factual considerations relevant to assessing effective governmental authority over territory and population.
- For a federal-type state, continued statehood requires federal organs that both represent the constituent units and wield effective power.
- Where dissolution occurs, successor entities must address succession matters under international law, including considerations tied to human rights and minority protections.

## Conclusion

The Commission characterized the Yugoslav crisis as the dissolution of the SFRY based on the factual collapse of representative and effective federal governance, rejected recognition as determinative of state continuity, and placed responsibility on the republics to resolve succession consequences under international law with special attention to human rights and minority rights.


Conference on Yugoslavia Arbitration Commission, Opinion No. 1, 31 I.L.M. 1494 (1992)