by Paul R. Williams
During the parliamentary debate of 9 May 1995, Foreign Secretary Douglas Hurd proposed that the future structure of the state of Bosnia-Herzegovina should be 'a loose union of the Muslim-Croat federation and the 'Serb regions'. The adoption of such a policy by the international community would signify the end of the current state of Bosnia-Herzegovina as an independent state, since a Loose Union has no international legal personality or status.
Criteria for Statehood
In order to be a state, an entity must have a defined territory with a permanent population, which population is subject to a government, and which government is sovereign and independent. The entity must also exhibit a substantial degree of permanence and viability.
Entities that Qualify as States
Under international law, three categories of entities are generally considered states: a unitary state, a federation and a confederation. Each of these categories of states is characterised by the central government's ability to exercise a substantial degree of legitimate political control over the entire territory of the state. The categories are also characterised by the central govrnment's authority to conduct foreign relations of the state, which include representing the state in international organisations, concluding treaties and exchanging diplomatic personnel with other states, and assuming international debt obligtions on behalf of the entire state.
CateÌÌÌÌÌÌÌÌ´gories of entities which do not generally qualify as states are: a Union of Sovereign States, an Association of Independent States, a Commonwealth of Independent States, or a Community of Independent States. Similarly, entities such as the British Commonwealth, the European Community and now the European Union do not meet the necessary criteria for statehood. These entities are unable to claim the rights and obligations of a state, because their constituent member states have retained substantial sovereign powers and exercise a significant degree of independence. Without the competence to exercise the necessary sovereign powers, these entities do not have an international legal personality tantamount to statehood.
The international legal status of a Loose Union
The three key elements of statehood most relevant to the question of the status of a Loose Union are that the state must have a government which exercises effective control over the population, that this government if sovereign and capable of carrying out international relations, and that the state exhibits some degree of permanence. A Loose Union would have none of these characteristics.
Because a Loose Union would entail the independent exercise of domestic authority by the separate constituent entities, the central government would be unable to exercise effective and legitimate political control over the whole of the territory of the Loose Union.
The central govrnment would not be sovereign, as it would not possessthe power to conduct foreign relations on behalf of the entire territory of its state, eg. the central government would be unable to maintain membership in international organizations, since each entity in a Loose Union would likely insist on its own membership; it would not be competent to enter into treaties binding the entire territory of its stage; nor would it be able to eassume international debt obligations.
The international legal status of the State of Bosnia-Herzegovina
Bosnia-Herzegovina is an independent state recognised by the member states of the international community. In recognition of this status, Bosnia-Herzegovina has been admitted as a member state of the United Nations and many other international organizations.
As an internationally recognised state, Bosnia-Herzegovina is entitled to the inherent rights of territorial integrity and political independence, as well as the right to self-defence of that territory. The fact that the state of Bosnia-Herzegovina has been subject to internal and external aggression since being recognized as a state, and that these aggressors have occupied large parts of Bosnian territory, does not in anyway affect Bosnia-Herzegovina's status as a state.
International law is clear on a number of points concerning this situation: an entity may be recognized as a state even though it may not exercise effective control over all its territory; the occupation of parts of a state's territory by either belligerent forces or external aggressors does not affect that state's continuing right to be a state; a state's orders may not be changed other than by the express consent of that state; and a new state may not be created through an unlawful use of force.
The legal right of Bosnia-Herzegovina to exercise sovereignty over the entire territory of what was formerly the Yugoslav Republic of Bosnia-Herzegovina is augmented by the fact that Bosnia-Herzegovina was recognised within its republic borders by the European Union the United States, and many other states, and that the European Community Arbitration Commission ruled that under international law the territorial borders of Bosnia-Herzegovina must be those of the former republic of Bosnia-Herzegovina.
The Effect of Creating a Loose Union
The creation of a Loose Union of the current Bosnian Federation and the 'Serb regions of Bosnia-Herzegovina' would have the effect of creating two new states: the current state of Bosnia-Herzegovina with 51 percent of its previous territÌÌÌÌÌÌÌÌ´ory, and a Serb state. The creation of a Serb state would be in itself a violation of the principles of international law, as no state shall be created by the use of unlawful force, let alone the use of genocide and ethnic cleansing. Similarly, the creation of a Serb state would be in contravention of the myriad of statements by the European Union and the United States that the territorial integrity and borders of Bosnia must be respected.
Finally, the suggestion of a Loose Union is tantamount to suggesting the formal dismemberment of a member state of the United Nations, and itself might be considered a violation of the principle of the territorial integrity of Bosnia-Herzegovina.
Paul R. Williams is Executive Director, Public International Law and Policy Group and former Attorney-Adviser for the United States Department of State, Office of the Legal Adviser for European and Canadian Affairs.