Yugoslavia

I. STATES AS THE MAIN SUBJECTS OF INTERNATIONAL LAW

According to the¬¬ International Court of Justice the International Law (I.L) is characterized by a plurality and heterogeneity of subjects (Malcolm Evans: 282). In this way, an international subject is that who possess international rights and duties conferred by international legal standards and who have the capacity and being able to enforce these rights in front of international institutions and being responsible in the international field when a law violation takes place. (Díez de Velasco: 249-250). The different nature of the international subjects and their different capacity levels make possible to differentiate them.

The States are necessary and fully International Law subjects. Although there is not an exact definition of “State” in the International Law, the Arbitration Commission of the European Conference on Yugoslavia, in opinion No.1 declared that “The State is commonly defined as a community which consists of a territory and a population subject to an organized political authority” and that “such a state is characterized by sovereignty” (Malcolm N. Shaw: 198). These four requirements of statehood have been recognized in the Article 1 of the Montevideo Convention on the Rights and Duties of States of 1933 (APENDIX-1):

• Permanent population

• Territory

• Government

• Capacity to enter into relations with other states

According to the prevailing doctrine, the first three criteria are those that ensure the "statehood" (strictly) while the fourth is simply a condition for recognition: a consequence of being a State and not a precondition. In any case, in practice the four criteria should be met be met and this usually involves previous contacts and negotiations

II. RECOGNITION

I. GENERAL DEBATE AND LEGAL CONSECUENCES

The emergence of a new state can be ex novo without affecting other states, or from preexisting states by modification or extinction. Once the new has met those necessary requirements explained above, it exists as a full subject of the I.L. and now, it can be recognised by the rest of the States, who should verify their real existence.

In this way, the recognition of an entity does not only mean that this entity own all the required qualifications, but also that both the recognising and recognised states will enter into relations, assuming rights and duties toward each other. Furthermore, the recognised State will enjoy since this moment legal consequences of recognition such as privileges and immunities within the domestic legal order . Hence, the decision of to recognise or not, it is related with both legal grounds but also political views (Shaw: 445).

In relation with state’s recognition there are mainly two theories: the constitutive and the declaratory. The first one considers that a State can only really becomes a state entity when it achieves recognition; while the second establishes that the state is considered as such since it has fulfilled all required qualifications (APENDIX-2).

However, it is possible to distinguish in practice a constitutive aspect to the extent that, although the new state is a subject of international law from birth it cannot fully exercise certain rights until it has been recognized. Thus, “it is not just a formality, but it also has great practical significance” (Verdross: 229-230). Although the recognition has an indubitable declaratory value, the ability of the new state action at the international level is very restricted before its formal recognition, which is necessary for the full exercise of their external competences or for the full deployment of their legal acts’ effects in the international sphere (Ding: 440-442). (APENDIX-3).

Therefore, recognition is a real legal act and not a pure political gesture, although it is influenced by political motivations which often lead to subjective assessments of States in relation to the new state formation that are called to recognize.

Hence, assuming its legal nature, as recognition is a voluntary or discretionary act ("free" according to the International Law Institute) only partial aspects of the existence of that fact only the author of recognition is bound by it, so that there can be legitimately a fact regarding some states but not others, and may in particular be recognized only partial aspects of the existence of that fact

It is also interesting to note that there is a doctrine of non-recognition of new states emerged in violation of principles enshrined in the Charter of the U.N. However, despite the efforts to enshrine in the positive I.L. a general obligation for not-recognition in these cases, the truth is that some political factors difficulties this task.

II. FORMS AND PROCESS OF STATES’ RECOGNITION

In regard to the possible forms of recognition, one can distinguish the individual or collective; the expressor implied; and the de facto or de iure regocnition (APENDIX-4).

In regard to it, whether the admission of a new state in an international organization (I.O) –understood as a collective and implied recognition- implicate the recognition by the States who conform the I.O is a controversial issue which is usually solved in the negative from the consideration of the recognition as a free, discretionary and non-obligatory act. Indeed, some examples can be identified inside the United Nations (U.N): for some time Greece –and some more states- denied to recognise the ancient Yugoslav Republic of Macedonia, member of the U.N. since 1993.

III. RECOGNITION OF STATES: YUGOSLAVIA

States usually consider, when recognize entities, the developments in the process of creating new states, adapting their behavior to that evolution and even setting conditions for the recognition of the new entity. This is the case of the emergence of new states as a result of the dissolution of Yugoslavia.

The conflict in the former Yugoslavia should be viewed as a struggle between the statist projects of different ethnic groups. These projects were suppressed or neutralized in Tito's Yugoslavia until the mid-70s, when it was opening a field of autonomy and independent institutions. In the 90s, basically western interests of Germany and US-influenced the course of conflict and their solutions, often back to international legality.

I. THE EUROPEAN COMMUNITY SETS NEW ROLES

It is interesting to reference two documents that

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