Robert M. Hayden (1999). - Blueprints for a House Divided: The Constitutional Logic of the Yugoslav Conflicts.
(Volume 1, Number 1, Spring 2000.)
Ann Arbor: The University of Michigan Press. pp. 298.
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