Gerard Gallucci: Kosovo – the ICJ speaks

Kosovo – the ICJ speaks

The International Court of Justice's ruling has found Kosovo's declaration of independence to be neither legal nor illegal, but that international law contains no applicable prohibition of such declarations.

By Gerard Gallucci

The International Court of Justice (ICJ) today delivered its decision on whether "the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo [is] in accordance with international law?"

The Court reportedly began by asserting its jurisdiction: "The court … considers that it has jurisdiction to give an advisory opinion in response to the request made by the (UN) General Assembly….There are no compelling reasons to decline to exercise its jurisdiction in the present request." The Court also found that international law "contains no applicable prohibition" of declarations of independence and thus concluded "that the declaration of independence on 17 February 2008 did not violate general international law." The Court also reportedly noted that nothing in UN Security Council Resolution 1244 prevented the unilateral declaration of independence. The Court declared, however, that it did not consider the legality of any right to self determination or succession. Although the Court decision was less ambiguous than many foresaw, it nevertheless seemed to limit itself to a finding of fact. i.e., that international law does not address the issue of declarations of independence. Thus it found the declaration neither legal nor illegal.

This will all require a detailed reading – the ICJ website was not prepared for the attention from Kosovo watchers and failed to offer timely access to the decision or a transcript. But the spin cycle has already started. Both sides have readied their diplomatic response. Belgrade had signalled that it plans to follow the decision back to the UN General Assembly, where it will ask for a resolution supporting further negotiations, while taking its case directly to national capitals. Belgrade is reportedly resisting pressure from the EU and US to accept an EU draft resolution that would not call for new negotiations (but perhaps allow for talks on technical matters). In Washington, Vice President Biden repeated US support for Kosovo independence and the US ambassador to Pristina will be meeting with foreign press to make the case for no new negotiations and to preview an expected wave of new recognitions. Pristina and its allies will be energized by the headlines suggesting that the ICJ ruled the declaration "legal" despite the fact that it did no such thing.

As everyone understood from the beginning – though the Pristina camp will suggest otherwise – the ICJ decision resolved nothing and the Kosovo status issue remains unsettled. Belgrade has no choice – as long as the Quint remains opposed to new negotiations and a compromise solution – but to continue to reject independence and to support the Serbs in Kosovo. The northern Serbs will continue to reject rule from Pristina and remain unlikely to accept any efforts to force it upon them. What the decision may do is embolden the Albanians (with US support) to renew provocations in the north and the EU to increase pressure on Belgrade by threatening delay on EU membership.

The situation on the ground remains dangerous. Another thing the ICJ decision does not do is decrease the potential for violence.

Gerard M. Gallucci is a retired US diplomat and UN peacekeeper. He worked as part of US efforts to resolve the conflicts in Angola, South Africa and Sudan and as Director for Inter-American Affairs at the National Security Council. He served as UN Regional Representative in Mitrovica, Kosovo from July 2005 until October 2008. The views expressed in this piece are his own and do not represent the position of any organization. You can read more of Mr. Gallucci's analysis of current developments in Kosovo and elsewhere by clicking here.

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Related posts:

1. Kosovo – "a struggle over who gets the north"
2. Walking the Kosovo tightrope
3. Kosovo – what is to be done?
4. Kosovo and the Ahtisaari Plan
5. Montenegro – in between Serbia and Kosovo

http://www.transconflict.com/2010/07/kosovo-the-icj-speaks-227/

Kosovo case in the International Court of Justice: time to shed illusions

 

Kosovo

17:32 21/07/2010

© RIA Novosti. Ruslan Krivobok

This story by Petr Iskenderov, a senior research fellow at the Institute for Slavic Studies of the Russian Academy of Science, Strategic Culture Foundation expert, was published in International Affairs magazine.

On July 22, the UN International Court of Justice in the Hague will issue its opinion on the status of  Kosovo, the breakaway province which unilaterally declared independence from Serbia on February 17, 2008. For the first time in its history, the Court is to judge on the legality of the proclamation of independence by a territory of a UN-member country without the consent of the latter. The ruling is sure to set a precedent for scores of likewise cases, including those in the post-Soviet space.

The International Court of Justice has been looking into the legality of the unilaterally proclaimed Kosovo independence from the standpoint of international law since the fall of 2008.  The request was submitted to the Court by the UN General Assembly following Serbia's demand. After heated debates, the delegations voted in Belgrade's favor: 77 voted for having the case examined by the International Court of Justice, 6 voted against, and 74 abstained. The countries which chose to abstain were mostly the EU members which at the time regarded Kosovo's independence as a decided matter but did agree that Serbia had the right to present its position in the Court. The countries which voted against were the US and Albania as the key architects of the Kosovo independence and a number of Asia-Pacific countries.

The International Court of Justice was supposed to unveil its ruling in April, 2010 but, as the media found out, serious disagreements surfaced among the Court judges and the process took longer than initially expected. Moreover, there were indications that the West deliberately postponed the ruling to exert additional pressure on Belgrade over the extradition of former commander of the army of Bosnian Serbs R. Mladic to the International Criminal Tribunal for the former Yugoslavia.

At the moment it is clear that the architects of the new world order are not going to wait any longer, especially considering that the ruling will yet have to be examined by the UN General Assembly which is entitled to make the final decision. Serbia's foreign minister V. Jeremic said the Court verdict would not put the final dot in the dispute over Kosov. He projected that the struggle over votes in the UN General Assembly would be much more serious. Jeremic said Belgrade realized that it would have to face aggressive and heavily funded Albanian propaganda and demands to drop its position, but stressed that Serbia should do its best to preserve domestic political unity and that the peaceful diplomatic struggle for Serbia's territorial integrity and a compromise over Kosovo and Metohija should continue. Jeremic expressed the hope that the verdict of the International Court of Justice would become a  moment of truth and ring a warning to those in Pristina who thought they would be able to  tailor the international law to their wishes. Are there real grounds for Jeremic's optimism and what verdict can we expect from the International Court of Justice?

One of Serbia's officially stated objectives behind getting the case examined by the International Court of Justice was to impede the recognition of Kosovo's independence across the world. To an extent, the plan has worked. Whereas 48 countries  recognized the independence of Kosovo within the term of six months prior to the October 8, 2008 UN General Assembly's decision to send the Kosovo case to the International Court of Justice, only 21 country did the same over nearly two years since the date. As of today, the independence of Kosovo is recognized by 69 of the 192 UN countries. On the other hand, only one country – Costa-Rica – stated officially that it may reverse its decision depending on the Court verdict. As for the EU, the countries still denying recognition to Kosovo are Greece, Spain, Cyprus, Romania, and Slovakia.

Serbia's problem is that the disposition in the International Court of Justice happens to be the opposite of that in the UN General Assembly.  In the Court, 9 of 15 judges including the presiding one represent Japan, Sierra Leone, Jordan, the US, Germany, France, New Zealand, Somali, and Great  Britain, namely the countries which have recognized the independence of Kosovo. The opposite position is espoused by Slovakia, Mexico, Morocco, Russia, Brazil, and China. Therefore, Serbia's other officially stated goal – to achieve international acknowledgement of the illegitimacy of the unilateral proclamation of independence by Kosovo – appears unrealistic.

There is information that in the past several months the International Court of Justice judges considered three potential rulings. The first one can be indefinitely worded, contain condemnations of both the Kosovo unilateralism and Serbia's politics under S. Milosevic, and say neither Yes nor No to the independence of Kosovo. This gentle option will materialize if Serbia capitulates in what concerns the extradition of Mladic.

The second potential ruling, which was mainly advocated by France, was supposed to carry the statement by International Court of Justice that the issue is purely political and can only be addressed at the level of the UN Security Council. The scenario does appear improbable at least because to make such a statement the Court would not have had to get bogged on the case since October, 2008 or hold closed hearings in December, 2009.

There is also the third potential ruling, and the current impression is that the majority of the judges are going to opt for it. The verdict can be premised in the assumption that, allegedly, the Kosovo case is unique, the coexistence of Kosovo Albanians and Serbia within a single statehood is impossible, the talks on the status of the province collapsed, and therefore the unilateral declaration of independence by Kosovo – and its subsequent recognition by a number of countries - were a forced step and a smaller evil. The verdict will be accompanied by the dissenting opinions of some of the judges who do not recognize the independence of Kosovo due to fundamental regards, but this will not change the fact that the verdict will be favorable to Albanians.

By the way, Kosovo administration is absolutely convinced that the coming verdict of the International Court of Justice will be  news to it. Kosovo foreign minister Skender Hyseni has already broadcast the Kosovo administration's determination to gain control over the whole territory of the province, which practically means subduing its northern, Serb-populated part. The verdict of the International Court of Justice can provide a legal backing for the hard-line policy.

While the judicial contest over Kosovo is likely lost for Serbia and the countries supporting it, the long-term repercussions of the coming verdict and the role it can play in other conflict cases should be assessed from a broader perspective. The conclusions and even more so the arguments of the International Court of Justice will be studied carefully with an eye to similar conflicts, including those in the Caucasus and other parts of the post-Soviet space. The options open to Russia in this context certainly deserve attention.

From the outset, the Russian leadership stated quite reasonably that its decision to recognize the independence of Abkhazia and South Ossetia was based on an understanding of the situation in the Caucasus and not in any way on the Kosovo precedent. Nevertheless, the fact that the International Court of Justice would express no opposition to the independence of Kosovo would automatically weaken the West's case against the recognition of Abkhazia and South Ossetia by Russia. Moreover, opportunities would arise to subject to an overhaul the general principles of conflict resolution in the Balkan and the Caspian regions, for example, in Bosnia, Macedonia, or Karabakh. In fact, Russia is confronted with the following dilemma. As far as the international law and the territorial integrity principles are concerned, Moscow would certainly prefer to see the International Court of Justice issue a pro-Serbian verdict, but a Realpolitik approach can help discern alternative horizons in the situation, and then the Serbian cause is not completely lost regardless of what the Court eventually says. Perhaps, it is time for Moscow to shed counterproductive illusions in domestic politics and geopolitics. Unlike Belgrade's efforts aimed at securing the Serbian interests in the Balkan region and supporting Serbs in Kosovo, Bosnia and Herzegovina and elsewhere, the plan centered around the International Court of Justice has never looked really promising.

(Views expressed in this article reflect the author's opinion and do not necessarily reflect those of RIA Novosti news agency. RIA Novosti does not  vouch for facts and quotes mentioned in the story)

http://www.en.rian.ru/international_affairs/20100721/159895649.html