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International Court of Justice on the Legality of Kosovo's Declaration of Independence: Analysis and Legal and Political Implications

2011; RELX Group (Netherlands); Linguagem: Inglês

1556-5068

Asim Jusić, Dragan Gajin,

International Law and Human Rights

The General Assembly of the United Nations (hereafter the GA) on 8 October 2008 adopted resolution 63/3 asking the International Court of Justice for an Advisory Opinion regarding the legality of Kosovo’s declaration of independence. On 22 July 2010 the Court announced its Opinion. This article briefly presents the opinion, and esentially focuses on Serbia’s arguments presented to the ICJ; and than analyzes legal and political implications of the Opinion. The argument advanced in this paper is that taking into account Serbia’s expectations regarding this ICJ Opinion, it is safe to conclude that in the legal sphere Serbia suffered a defeat on two levels. Firstly, the ICJ did not proclaim Kosovo’ Declaration of Independence illegal. Secondly, the ICJ had preemptively, trough analysis of Serbia’s own arguments, proclaimed the potential unilateral pro-Serbian secession of one of Bosnia’s provinces, Republika Srpska, illegal. However, the way things stand now, for plenitude of internal and external reasons, the ICJ opinion is a mixed blessing for Kosovo. As the course of events following the Advisory Opinion testifies the process of international recognition of Kosovo or the process of EU integration has been effectively stopped without much hope for rapid continuation, despite the fact that the Opinion was relatively favorable for those seeking further recognitions of Kosovo. This fact has not much to do with the content of the Opinion - for their own internal (and sometimes external) reasons states do not look favorably to secessionists movements, even those, such is Kosovo, supported by some major powers. After the issuance of opinion, only Kiribati, Tuvalu, Qatar, Guinea-Bissau and Oman have recognized Kosovo, bringing a recognition toll to a total of 75, out of which 22 states are EU members. Three difficult obstacles, two external and one mixed internal and external, stand in the way of Kosovo’s full recognition and acceptance to the UN or acceleration of the process of EU integration, a publicly avowed goal of all Western Balkans countries. Firstly, two permanent members of the UN Security Council, Russia and China, are adamantly opposed to the recognition of Kosovo, both for their own internal reason. Chinese non-recognition of Kosovo is motivated by it relationship with Taiwan, the Tibet issue and other potential claims, while cause of Russia’s opposition is its own internal issues in Northern Caucasus and many other places as well as its alleged support for Serbia’s cause in Kosovo. Though it is far from inconceivable that at some point in time Russia might tacitly change its stance, there does not seem to be even a slight chance that China will do anything similar for a foreseeable future . While major Western powers supporting Kosovo (the US, Britain, Germany and France) have some bargaining chips to offer to Russia, it is not clear what if anything (or anyone) can persuade China to change its stance given global economic and political developments. Secondly, five EU member countries (Slovakia, Romania, Spain, Greece and Cyprus) for their own internal reasons – presence of significant minorities or existence of secessionists movements in those countries - also remain opposed to the recognition of Kosovo without, as yet, clear signals of a change of perspective, consequently effectively paralyzing the EU’s ability to recognize Kosovo or act as an effective mediator. Third, the internal reasons have to do with the de facto partition of Kosovo to the southern part, controlled by the Kosovo government, and the northern part effectively controlled by Belgrade; and the latest findings of Dick Marty, who in his report to the Council of Europe and (to be confirmed) the European Parliament, claimed that current members of Kosovo government and former members of Kosovo Liberation Army engaged in human organ trafficking, inhumane treatment and organized crime, all with tacit knowledge, if not approval, of Kosovo’s international sponsors. The de facto partition was a fact on ground already known at a time of KDI, but the content of the report –even though the allegations contained therein have not been inspected by any international court - has casted heavy shadow over Kosovo’s path towards the UN membership. As the head of the civil section of the international administration in Kosovo Peter Faith recognized, the effects of this shadow are as yet unknown but are surely to be negative for Kosovo’s reputation . Considering these hurdles, it is safe to predict that for a long term future Kosovo is bound to remain under international administration. The danger is that if current trends of the absence of further recognitions hold, especially on the side of the EU countries, Kosovo might even potentially become, as Andrew MacDowell argued, a “rogue state.” However, this threat might also present an opportunity. Definitely much needs to be done in terms of building Kosovo’s institutions and democratizing the society and, if successful, this process could potentially accelerate process of Kosovo’s international recognitions. Hopefully the current situation will act as motivating factor that will accelerate the process of Kosovo’s internal reforms.