Synthetic report - EURAC

determination), as the latter is granted to “peoples” only and not to national
minorities. Moreover, public international law tends to preserve the sovereignty of
existing states. 32 Although the concepts of minority rights and self-determination
were developed independently, an overlap may occur, if the national minority is at
the same time “a people” or a part of it, 33 as it is the case of Albanians. One may
argue that in this situation the minorities’ rights are to be regarded as a fulfillment
of the right to self-determination. 34 The latter may, however, generate the right to
secession, if the minorities’ rights are gravely disregarded and secession represents
the only way to avoid flagrant violations of these rights. 35 There is until now no
clear legal position on Kosovo problem. Yet, it has been observed that in the
practice of the UN with regard to Kosovo, reference to the right to selfdetermination
is carefully avoided. 36
Croatia and Slovenia and afterwards BiH and Macedonia had claimed that
they had a right to self-determination and (an entailed) right to secession under
the Yugoslav Constitution. Since the right to self-determination and secession
referred to nations, the Serbs in Croatia and in BiH claimed that they also had the
right to secession from the republics that wished to leave Yugoslavia.
The claims of the four republics, however, were challenged by many
Yugoslav scholars. 37 The Federal Executive Council took the position “that the right
must result from a democratic process and not from a unilateral act.” 38 The same
position was taken by the Constitutional Court of Yugoslavia which also stressed
that Yugoslavia’s international borders can only be altered by virtue of laws passed
by the Federal Assembly (Article 183). 39 This interpretation can be regarded as
being in line with the concept of self-determination prevailing in international law,
given its reluctance towards affirming a right to secession. 40 In contrast, the
principle of the Yugoslav constitution understood autonomously and literally, as
linking self-determination unconditionally to the right of secession, would go far
beyond of what is established under international law. One must keep in mind that
the right to secession under public international law, if acceptable at all, must
preserve a character of “an absolute exception”. 41
32 Knut Ipsen/ Hans-Joachim Heintze, Völkerrecht (C.H. Beck, München 2004), 423. According
to M. Shaw “Self-determination as a concept is capable of developing further so as to
include the right to secession from existing states, but that has not as yet convincingly happened.”
See Malcolm N. Shaw, International Law (Cambridge University Press, Cambridge
2003), 231.
33 Ipsen/Heintze, 413.
34 This was apparently the position of Badinter Committee in its opinion regarding the status
of Serbians in Croatia and Bosnia-Herzegovina, see Opinion No. 2, (3) European Journal of
International Law (1992), 184.
35 Ipsen/Heintze, 414. This view is not shared e.g. by Shaw, 231. According to Heintze, the
right to secession must have a character of “an absolute exception”. Ipsen/Heintze, 423.
Heintze invokes an argumentum a contrario from the Resolution of the UN General Assembly
Resolution on Friendly Relations (Friendly Relations Declaration, Res. 2625 (XXV)) which
does not constitute a source of international law as such and may be only regarded as a
piece of evidence of respective customary law rule.
36 Ipsen/Heintze, 415.
37 Cp. Ben Bagwell, “Yugoslavian Constitutional Questions: Self-Determination and Secession
of Member Republics”, Georgia Journal of International and Comparative Law (1991), 489-
523, at 509.
38 Ibid., 511.
39 Cited after Radan, 169 and 173.
40 See supra, p. 15.
41 See supra, fn. 35
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