From the time of the Treaty of Westphalia (1648), the state has been the foundation of the international order. It is hardly surprising, then, that there should exist a vast body of legal thinking and state practice concerned with regulating the emergence of new states within that order. Yet one may wonder just how relevant this legal tradition was to the EC's decision to recognise the constituent republics of Yugoslavia as independent states in 1991. The EC's actions would seem to have been motivated largely, if not entirely, by political and strategic considerations, as we saw in Chapter 1. Any use of the law, critics maintain, served merely to justify what at bottom was a policy governed by extra-legal concerns. As one observer put it, the EC chose to ‘mask a selective political choice behind an appeal to general rights and principles of international law’.

Yet while it would be wrong to elevate the importance of legal thinking and precedent above all other factors, it is also incorrect to disparage the legal aspects altogether. There are two reasons for this. First, however liberally West European officials may have interpreted the legal tradition in their response to developments in the region, they nonetheless constructed their policy squarely within that tradition. When it became apparent that the recognition of Slovenia and Croatia could probably not be avoided, the EC turned to the commission of jurists it had established in August 1991 (the Badinter Commission) to advise it, thus ensuring the salience of legal argument.