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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5 Responses

  1. Privato

    Serbia asked the specific question and got a knock out punch! Albanians didn’t choose the question and didn’t even want to go to court.

  2. Ultravoice

    So once again we act surprised when we find out that brute force is stronger then the force of law. This rulling is only getting us closer to the only sustainable and real solution to the problem at hand. Serbia will take the province back through the force of arms, the same way it lost it. Pretending that it will happen some other way, has just started to look like a pipe dream.

  3. Mladen

    Serbia asked the question which had the highest probability of being answered in its benefit. There were no better alternatives. You could not ask “whether the unilateral independence was illegal” because it would mean that independence actually took place, and Serbia does not recognize that. It just accepts that the provisional institutions proclaimed independence. Anyway, the Court’s opinion is a catastrophe. Every student would explain and interpret the situation and positive international norms better. Their arguments are weak, just look the dissenting opinions. Declaration by itself is not violating the general international law, but is certainly violating SC Resolution 1244. The regime formed by this resolution is changed, and it must not have been done by any actor (except, of course, the Security Council). It makes no sense to say that Albanians were not bonded by the Resolution, no matter whether they acted as “representatives of the people” or through the institutions. It is just an intellectual post hoc construct, as said by judge from Slovakia. Albanians changed the status of Kosovo, a part of Serbia (a fact confirmed by the SC 1244 Resolution) by proclaiming independence. It is an ultra vires act. It was implicitly clear in the Resolution that no unilateral action could be legally accepted, indeed, the Resolution was actually written to avoid unilateral actions. Also, the right to self-determination as such is much less institutionalized than the territorial integrity. So, even if it is true and possible that “people of Kosovo” proclaimed itself independent outside or beyond the regime of UN bodies – which is, for sure, a nonsense – it could never legally result in the taking of the territory of a sovereign state. ICJ made a mistake, and that is going to be seen in the next years and decades.

  4. Tom

    The Cour should have not accepted to give the advisory opinion. It has made more harms than goods. As far as Kosovo is concerned, it’s gonna be either a new war or secession from the North… The Court did not rule on a right to secession or to conditions that might led to secession. It limited itself to say that the declaration did not violate international law making its decision quite complicated to understand.
    From the moment the Court decided to answer the question, it shoul have gone further and give a ruling on the conciliation of the right to self determination and the principle of territorial integrity of States.
    Now, every independence movement will claim a right to secession based on this declaration no matter how much head of states, the court and the UN will try to explain taht it is not a precedent. By statins that a declaration of independence did not violate international law, the Court has opened the pandora box… it has already started with abkhazia and Ossetia… no matter what it is gonna be difficult to tell the RS to stay within Bosnia and Herzegovina and there are many more… The Court has added some soap on the slippery slope!

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