Kosovo’s declaration of independence did not violate international law. The International Court of Justice (ICJ) surprised its global audience, including its most attentive listeners, Serbia and Kosovo, by issuing, on 22 July, a very clear-cut advisory opinion on the legality of Kosovo’s declaration of independence. A closer look, however, reveals that the ICJ only stated that the declaration was not in itself an act contrary to international law. As one international law expert put it, “[…] similarly, if I were to stand in my living room ad declare it to be an independent state, I would have not violated any rule of international law”. The ICJ did not, in fact, provide any guidance on whether the declaration was legally effective, on Kosovo’s right to secede or current statehood, or on whether recognitions by other states violate international law.
Nevertheless, the ICJ pronouncement was a major diplomatic victory for Kosovo and its supporters, and a solemn blow to Serbia and its policy of tackling the Kosovo matter at the UN level.
Pristina, backed by the US, Britain, and, less enthusiastically, by the other EU Member States that have recognized Kosovo so far, has hailed the ICJ opinion as the final seal on the issue of Kosovo’s status, and called for an end to international supervision on its statehood. Supervised independence was the formula proposed in March 2007 by UN Special Envoy Martti Ahtisaari, who also developed a Comprehensive Status Proposal (CSP) as a detailed blueprint for Kosovo state-building, particularly focusing on minority protection provisions and prescribing extensive international scrutiny of CSP compliance. As the Ahtisaari plan failed to become the new international legal framework for Kosovo, due to the opposition by Russia at the UN Security Council, Pristina self-assumed CSP obligations in its declaration of independence in February 2008, adopted a constitution based on CSP and accepted the supervision by the International Civilian Office (ICO) headed by International Civilian Representative (ICR) Pieter Feith. Decisions on modifying or ceasing the ICO and ICR mandate are to be taken by the International Steering Group (ISG), the group of countries that recognized Kosovo according to the CSP, and have apparently very little to do with the ICJ recent advice. Kosovo’s Prime Minister Hashim Thaqi recently declared that up to 90% of CSP provisions have been complied with. While this may be somewhere close to the truth in terms of adopted legislation, implementation is still lagging behind in many areas and subsequent European Commission progress reports present a bleak picture of Kosovo governance, particularly in relation to key dossiers such as public administration, fighting organized crime and corruption. Recent and ongoing investigations by the EU rule of law mission in Kosovo, EULEX, are also unveiling major corruption schemes at the government level.
Meanwhile, in Belgrade, the government had to rush to counter internal repercussions of the ICJ advice, and received, following a long and delicate debate, the Parliament’s support for a continued effort “for the preservation of Kosovo”. Serbia then submitted a draft resolution to the UN assembly on the ICJ opinion, stating that “a unilateral secession cannot be an acceptable way of resolving territorial issues” and calling for discussions on “all outstanding issues” between Kosovo and Serbia. The UN Assembly is scheduled to debate Kosovo and Serbia’s resolution on September 9. The call for a dialogue between Belgrade and Pristina has come from various corners in the aftermath of the ICJ opinion. EU High Representative Ashton also offered the EU’s good offices to this aim. However, the possible scope and exact terms of such a dialogue remain unclear: Pristina and its sponsors consider the issue of the status closed, and would only discuss “practical issues of mutual interest” such as electricity, missing persons and trade. As its draft resolution to the UN General Assembly shows, Serbia is clearly looking at fresh talks on the status.
In fact, Belgrade has often been thought to be publicly aiming at reopening the whole Kosovo issue in order to be allowed, as a second best option, to retain Kosovo’s Serb inhabited north, or to achieve a special status for the area. Following the declaration of independence in Pristina, the region north of Mitrovica further strengthened political and institutional links with Belgrade, and the almost exclusively Serb population inhabiting is set to resist any possible extension there of the authority of Pristina based institutions. Hints to a special status for the north of Kosovo, based on the Italian South Tyrol model, were aired in the pre-ICJ opinion phase. However, after the World Court advice, Pristina started instead to hint adventurous moves to forcefully integrate the area, such as sending in Kosovo Police special units to re-establish the rule of law. While such actions are unlikely to be allowed even by Pristina’s staunchest international supporters, the north of Kosovo will remain the main flashpoint for some time to come, and no easy solution is in sight.
In sum, the ICJ opinion did not significantly change the facts on the ground: political, institutional and social developments since February 2008 have made Pristina’s path towards independence irreversible, never mind the outstandingly poor quality and frailty of its governance. The north of Kosovo continued and will continue to strongly resist such developments. The international community is still divided on the Kosovo issue, with fault lines also running within key stakeholders such as the EU, but also with a wide majority of states largely indifferent to the issue.
It remains to be seen to what extent the ICJ advice may, beyond its literal significance, have provided a boost to Kosovo’s diplomacy and opened the way to new recognitions – most significantly within the EU. The UN Assembly debate on September 9 is a first, major test.
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1. The ICJ opinion can be retrieved from
http://www.icj-cij.org/docket/files/141/15987.pdf?PHPSESSID=c25f26f9be6923a2aef6a8a5e313e74e
2. John Cerone, “The World Court’s Non Opinion”, http://opiniojuris.org/2010/07/25/the-world-court%E2%80%99s-non-opinion/. For a critical view on the ICJ Opinion, see also M. Parish, “Kosovo Ruling Reveals World Court’s Dark Side”, in Balkan Insight, 28 July 2010 http://www.balkaninsight.com/en/main/comment/29723/
3. The EU Member States that have not recognized Kosovo are Cyprus, Greece, Romania, Slovakia and Spain.
4. On this point, see the International Crisis Group latest report, “Kosovo and Serbia after the ICJ opinion”, Europe Report n. 206-26 August 2010, pp.8-17, http://www.crisisgroup.org/en/regions/europe/balkans/kosovo/206-kosovo-and-serbia-after-the-icj-opinion.aspx