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Robert M. Hayden (1999).
Blueprints for a House Divided: The Constitutional Logic
of the Yugoslav Conflicts.
Ann
Arbor: The University of Michigan Press. pp. 298.
ISBN 0-472-11066-7.
Robert
M. Hayden's Blueprints for a House Divided: The Constitutional
Logic of the Yugoslav Conflicts sets out to analyse
the logic of the collapse of the former Yugoslav federation
and the causes of the ensuing war(s). Hayden identifies
two sources of disintegration. Firstly, he suggests that
the federation collapsed because of the triumph of central
European nationalism and concepts such as the nation-state,
pursued primarily by the Slovenes and Croats. Secondly,
Hayden maintains that the disintegration of Yugoslavia followed
a firm logic of constitutional proposals based on exclusionist,
nationalist claims that undermined the authority of the
federation and produced structures of instability. According
to Hayden, the collapse of the former Yugoslavia and the
structures of the resulting conflicts can all be explained
as the logical consequence of the adoption of certain constitutional
concepts.
The
logic of disintegration according to Hayden followed the
pattern of constitutional proposals by Slovenia and Croatia,
initially in the form of amendments to the 1974 Constitution
of the Socialist Federative Republic of Yugoslavia (SFRY),
and then through the proposals for the transformation of
Yugoslavia as a confederation or alliance of sovereign states.
The former he believes led to the deconstitution of the
federation, while the latter was simply a ruse or a constitutional
sham aimed at reducing the power of the centre. He then
proceeds to critique the proposals for a new constitutional
arrangement and territorial delimitation for the Republic
of Bosnia and Herzegovina under the auspices of the international
peace conference. Hayden lucidly but one-sidedly examines
the sequence from the European Community's proposals for
cantons, the Vance and Owen proposals for provinces, the
Owen and Stoltenberg proposals for republics, and finally
the Washington agreements and the Dayton accords that established
entities and provisions for special parallel relations.
Hayden's discussion contains no distinction between the
aggressor and the victim, or any critique of the Serbian
imperative to use force to impose their will and a political
solution in Croatia or Bosnia and Herzegovina.
The
underlying basis of Hayden's thesis is the belief that crosscutting
ties made Yugoslavia a viable political community, exemplified
mainly by interethnic-marriages. Although Hayden dismisses
the claim that the nations that constituted former Yugoslavia
were afflicted with inherent incompatibilities that ultimately
led to the disintegration of the federation, he does suggest
the following:
What
did prove to be incompatible were republics based
on the principle of the sovereignty of the majority ethnic
"nation" (narod), formulations of the essence
of the state entered into the constitutional systems of
these republics beginning in 1989." (p. 3)
Hayden
believes that a system of constitutional nationalism, underpinning
constitutional amendments and proposals both at the level
of the republic and the federation, institutionalised a
division between those who are of the sovereign nation,
ethnically defined, and those who are not. Under such circumstances,
the latter may hold citizenship but cannot aspire to equality.
Constitutional nationalism is defined as a concept or process
by which constitutional and legal structures privilege the
members of one (ethnic) nation over those of any other resident
in a particular state (p. 68). A state or republic, which
adopts constitutional nationalism, envisions a state in
which basic sovereignty resides with a particular nation
(narod), the members of, which are the ones who can decide
fundamental questions of state form and identity. Of course,
under Hayden's analyses, the Slovenes and Croats are guilty
of institutionalising constitutional nationalisms that ultimately
led to the disintegration of the federation and produced
systems of inequality and discrimination of minorities.
Hayden uses Croatia as a case study to demonstrate how the
Serbian minority was alienated and discriminated in the
new Constitution (1990) and by the new democratic government.
Indeed, the Croatian government may be accused of not doing
enough, but the question is what could it have done to avoid
the Serbian rebellion and Yugoslav army intervention? Too
many Serbian leaders have stated that they did not want
to live in an independent Croatian state, and that the symbolism
of Croatia was not a factor, but an excuse. Indeed, Jovan
Raškovia had complained after the democratic elections that
politics and society in Croatia were "Croatocentric."
This absurd proposition could not be understood except by
the need to repress any manifestation of Croatian identity
and national awareness that had been marginalized or criminalized
under the previous regime as anti-state activity or hostile
propaganda. Indeed, Hayden does not discuss the efforts
of Croatia to bring the Serbian minority into parliamentary
and local representation. And there is a huge gap in understanding
the mechanisms adopted by Croatia to provide for local autonomy
and human rights for all its minorities under the auspices
of the Constitutional law on national minorities. Indeed,
the entire negotiating process after the adoption of the
Vance plan and the UN protected areas, the UNCRO mandate
and the implementation of the UNTAES temporary authority
is left out. Croatia's position was that the Serbian minority
could not secede from Croatia, and that they could aspire
to greater political representation according to the 1991
census both at the national and local levels. To exhaust
the omissions, Hayden does not examine the process that
led to the Zagreb 4 (Z4) agreement, which in effect created
a state within a state. Croatia only took this proposal
as a basis for discussion, but it clearly was unworkable.
It did, however, demonstrate the extent to which the Serbs
(in the occupied areas) would go to rejecting peaceful integration
and the level of autonomy that they would accept.
After
reading Hayden's analyses, one is left with the impression
that the Western republics, namely Slovenia and Croatia,
by pursuing their objectives in transforming the federation
into a modern, confederation or alliance of sovereign states,
set off an unstoppable process of disintegration. The book
suffers from historical myopia, because there is no discussion
of the history of Yugoslavia's battle to define itself internally.
There were protracted debates about whether the first Yugoslavia
would be defined as a republic or a kingdom, or whether
it would be the State or Kingdom of the Serbs, Slovenes
and Croats, or just of Yugoslavia. And then the debates
over the banovina, decentralisation and centralisation/unitarism,
and the Croatian banovina. Hayden also fails to discuss
the ZAVNOH and AVNOJ principles that consolidated the federal
basis of post-war Yugoslavia. While his initial purpose
may not be to write a history of constitutionalism in former
Yugoslavia, eliding over these important debates and formulations
seriously distorts the picture of a snap-shot of 1989 and
beyond. At that point, and under the successive constitutions
after the Second World War, the republics were defined under
the republican and federal constitutions as states whose
borders were unable to be changed without the ratification
of the Parliaments of the republics.
Hayden
also neglects the complex negotiations between Croatia and
Slovenia over the formulation of the joint confederation
proposal. And he also neglects to discuss the exhausting
negotiations between the republican leaderships that worked
towards articulating the extent to which they disagreed
over the future of Yugoslavia. Indeed, the Presidency of
the SFRY mandated the republics to present their visions
of a new relationship, and special working groups were established
to examine proposals for resolving the constitutional and
political crisis that emerged after the collapse of communism.
It is
interesting to note that Hayden spends too much time defending
his scholarship and perspective. Indeed, three years in
Belgrade does not equip one with any special understanding
of the crisis, particularly not of the perspective as seen
by Slovenes, Croats, Muslims qua Bosniacs, Macedonians or
the Kosovo Albanians. And most fundamentally, Hayden does
not ask the basic question about the axis of tensions and
competing visions. Why are all, and now including the Montenegrins,
the nations aspiring to their own political autonomy or
independence from Serbia? By omitting to discuss the Serbian
perspective and role in the disintegration of the federation
(for example the influence over the military, incursions
into Yugoslavia's monetary system for exclusively Serbian
purposes, unilateral abolition of the autonomy of Vojvodina
and Kosovo, and failing to accept the Croatian delegate
in the SFRY Presidency according to the principle of rotation,
amongst others). Indeed, there is little or no discussion
of the Memorandum of the Serbian Academy of Science and
Arts, a document that is widely viewed as the blueprint
for the destruction of Yugoslavia.
When
Hayden discusses the constitutional proposals for the reorganisation
of Yugoslavia, one is left wondering why the proposal for
a modern federation submitted by Serbia and Montenegro is
omitted. This proposal is interesting for many reasons,
especially because it outlines Serbia's position on a new
Yugoslavia. For constitutional lawyers, it is interesting
that Croatia and Slovenia proposed not 'secession', but
disassociation and association as mechanisms for negotiating
a confederation of sovereign states. The Serbian proposal,
however, explicitly defines the republics as states which
exercise some of their sovereign rights in the Federal Republic
of Yugoslavia and are independent in discharging the rights
and duties established in their constitutions and in organising
state government of their territories. Under article 10
of the Serbian proposal, every "republic has the right,
on the grounds of the will expressed by the citizens in
a referendum, to decide to secede from the Federal Republic
of Yugoslavia." The proposal also spells out the mechanisms
for secession, which is an odd provision as the official
representatives of Serbia claim that they tried to save
Yugoslavia from the 'separatist' Slovenes and Croats. Interesting
enough, a special working group of experts formed by the
Presidency of the SFRY at the end of February 1991, prepared
a draft document on the constitutional crisis, as well as
a draft constitutional and legal procedure for secession
from Yugoslavia. The latter document spelled out that the
right of nations to self-determination is one of the universal
rules of modern law that is also enshrined in the Yugoslav
Constitution. However, the draft noted that the Constitution
does not specify the rule or operational procedure for implementing
the right of nations to secede from the SFRY. The draft
suggested amendments to the Yugoslav Constitution, which
included, inter alia, the following provisions:
The
right of initiative for secession is vested in the Parliaments
of the Republics.
The
decision on an initiative will go to a referendum by all
the citizens of the republic.
The
referendum is valid if over half the total electorate
has opted in its favour.
In
the republics inhabited by members of several Yugoslav
nations the necessary majority is likewise determined
for each Yugoslav nation in particular. If one of the
Yugoslav nations declares itself against, all settlements
where this nation is in the majority, and which border
on the other part of Yugoslav territory and may therefore
constitute a compact territory, remain within the structure
of the SFRY.
If
the result of the referendum is negative, the same issue
may be brought up again only after the expiry of a period
of five years.
Under
this procedure, the Federal Executive Council would draw
up a balance of division of jointly created assets and properties
of the federation, as well as draw up proposals for territorial
delineation and determine the frontiers of the future states
and other questions of importance to the determination of
the act of secession.
These
provisions for secession were clearly drawn up for Croatia
with a view to parts of the republic seceding to remain
in the federation. The big question was the future status
of the Republic of Bosnia and Herzegovina, which could also
withdraw while parts of its population and territory join
the Yugoslav federation. Ironically, the Bosnian Muslims
and Serbs in July 1991 proposed the resolution of the crisis
based on an "historical agreement." The Muslims
proposed to the Serbs-without informing or including the
Croats-that they are "interested in a democratic solution
to the status and rights of the Serbian nation in Croatia,
and that we support their efforts for autonomy, as we support
autonomy for the Muslim/Bosniac nation in Sandžak. To the
extent that the Serbian nation expresses, and realises it
legitimately, a desire not to live within the framework
of a Croatian state, and expresses a desire for the Knin
Krajina to join Bosnia and Herzegovina, we shall then raise
the issue of enjoining both Sandžaks with Bosnia and Herzegovina."
The
most interesting aspects of Hayden's examination is the
role of essentially European concepts of the nation-state
and the role of the international community in "imposing"
from outside values, ideas and concepts that are foreign
to the "locals." However, Hayden does not deal
with these issues with any depth or convincingly. Had he
tried to grapple with these issues rather than place the
blame with the Slovenes, Croats and Muslims in wanting to
reorganise a failed state structure according to modern
European democratic standards and processes, scholars of
international relations and constitutional law would be
better served in understanding the logics of disintegration
of the former Yugoslav federation.
Marijan
Gubić, Zagreb, Croatia