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The ICJ Kosovo Ruling: Now What?

22nd July 2010

Welcome Browser and other new readers. After reading my thoughts below, check out this piece I wrote back in 2008 about inat. If you don't understand inat, you can't understand Kosovo or Serbia or anything about former Yugoslavia. Sorry, but there it is.

* * * * *

The International Court of Justice has ruled that the declaration of independence "is not in conflict with international law".

The ICJ site is overwhelmed so I can not yet share with you my wise thoughts on the full text of the decision.

Quickies anyway.

The ICJ decision was likely in view of the strange question which the UN General Assembly posed at Serbia's request:

Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?

Since international law loftily takes no view about declarations of independence, unilateral or otherwise. As I previously wrote:

Because in a trite sense a declaration of independence (or of anything else for that matter) has to be 'in accordance with international law', since it has no relevance in international law. International law does not deign to take any notice of declarations.

Thus, for example, if the town council down the road here in the UK makes a solemn unilateral declaration of the town's independence from the UK, the rest of us will make a wry smile and go back to blogging or working.

The declaration is 'in accordance' with UK law - free speech and all that. But it is just that, and no more. It's what happens afterwards that counts one way or the other in legal terms, in domestic as in international law. 

If citizens of our town en masse support the declaration of independence, put up road-blocks, stop paying taxes to Westminster and proclaim Vladimir Putin their new king with his consent, things begin to get more interesting.

Norms are being created and broken in all directions. Realities start to be created. Loyalties start to shift...   

Why did Serbia pose the Kosovo question in this odd form? Maybe because it did not want to force the ICJ to answer head-on the Kosovo independence question (eg Is Kosovo now a state recognised by international law?) in case the Serbs lost, thereby incurring an epochal defeat?

This 'advisory' ruling on this curiously open-ended question allows Belgrade to say that nothing significant has been decided one way or the other, so its struggle against Kosovo's independence blithely continues.

The ICJ ruling itself confirms that view in a sense, saying that the Court has not taken a view on whether the consequences of Kosovo's independence declaration have included Kosovo acquiring statehood.

According to B92 in Belgrade (in Serbian) Russia has been quick to confirm that it will not recognise Kosovo for (in effect) this very reason.

If other global big-hitters such India and China and Brazil and South Africa likewise decide to stay put and not shift their view, Kosovo's awkward half-in, half-out international status will drag on indefinitely - the map at the link shows how poorly Kosovo has done with the East/South of the planet.

On the other hand, the headlines round the world will tend to present this as a Win for Kosovo's cause, which in due course might well lead a larger number of countries to recognise Kosovo as a full independent state.

Basically, Kosovo falls into the All Too Difficult box for international law and policy.

Why? Because it is astride two huge tectonic plates underpinning global order and so is bang in the middle of a jurisprudential, political and moral earthquake zone. 

One plate is all about the right of identified peoples to be independent - the principle of self-determination).

The other is all about the circumstances under which existing states can split up into smaller or different formations (or not) - the principle of territorial integrity.

So it all wends its way back to the cynical deals done within the EU and between key European capitals and Washington back in the early 1990s. Basically, it was agreed to recognise Slovenia as an independent state since it (sort of) ticked both boxes simultaneously.

Slovenia was dominated overwhelmingly by Slovenes (self-determination).

And it had an undisputed geographical/political identity as a republic within the former Yugoslavia (territorial integrity), so its independence flowed neatly in parallel with the recognition of Russia and the other former Soviet republics as independent states.

Kosovo certainly makes its mark in the self-determination box, but as it was 'only' a province within Serbia (albeit with many attributes of a full republic, including membership of the eight-person SFRY Presidency itself) the territorial integrity issue is far less clear.

The more so since our cherished Helsinki Process norms basically lay down that there shall be no change in borders within Europe without the consent of all concerned. Which in this case there manifestly isn't.

Here is a tidy Russian look at the wider issues of principle at stake for Europe as these two tectonic plates grind away against each other. 

Implications for Bosnia? Not many.

The Republika Srpska leadership (more or less in coordination with Belgrade) will continue to press the self-determination argument: if Kosovo's declaration of independence is not against international law, why should Republika Srpska too not make a similar declaration at some point?

Down the road in Sarajevo the Bosniacs will noisily insist that the territorial integrity principle is supreme, and that RS itself is in different ways 'illegitimate'.

The Balkans. Where nothing is ever settled.

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