The Advisory Opinion hearings at the International Court of Justice on the Serbia/Kosovo question have started.
The curious thing about this one is the actual question which the ICJ is tasked by the UN General Assembly to address:
Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?
Since the answer is obviously Er, yes.
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…
In Kosovo’s case, many obvious attributes of substantive independence are visible, not least total absence of any governance influence from Belgrade for most of Kosovo, plus a huge majority of the local population supporting independence, police forces loyal to Kosovo and so on.
Which is why a good number of countries (63 last sighted) have lined up to recognise Kosovo as a new state within the border accepted by Kosovo’s Provisional Institutions.
This includes several of Kosovo’s neighbours and many European countries (albeit not all). That has persuasive force for the ICJ – this is without doubt a significant international law development of some sort, not a silly town council PR stunt.
By contrast the number of countries which have recognised S Ossetia and Abkhazia is, hem, rather less impressive. Which, as we know, suits Russia just fine. If they started to become real countries, who knows, one day they might want to join NATO?
Anyway, if the question posed to the ICJ by the UNGA at Serbia’s suggestion is strange or even perverse, what will the answer be?
Probably mixed, with lots of ICJ-style politics sloshing about in an ill-concealed way.
The ICJ members from (say) Russia, China, Brazil, Morocco and Somalia (all of whom have not recognised Kosovo as an independent state) may incline to favour the arguments that a unilateral declaration of independence under these circumstances may have some de facto impact but is not desirable or acceptable for general international law reasons.
Whereas judges from (say) the UK, France, Germany, New Zealand and Japan (countries which have recognised Kosovo) may be persuaded by the argument that by bringing Kosovo under effective UN protection in 1999 the ‘international community’ set in motion a chain of events which were bound to lead to a divorce, albeit an unhappy and messy one; the fact that so many countries have recognised Kosovo shows that reality has to prevail over abstract principle in this special case.
So at best a confusing and awkward outcome? No knockout victories for what is in any case an advisory and not binding decision next year.
Which more or less suits Kosovo as it creeps along towards wider recognition.
And more or less suits Serbia, since it can wave the flag of principle and play on lumpen ‘non-aligned’ anti-Western sentiment in the developing world to try to deter heavyweight but as yet uncommitted countries (say India, South Africa, Egypt, Indonesia) from recognising Kosovo, while cynically edging towards EU membership itself.
The fact that the EU itself is unable to give a unanimous view on the matter is a terrific boost for Belgrade.
As is the fact that countries representing a clear majority of the world’s population and including two UN Security Council members are taking Belgrade’s side of the argument, and may not see any reason to change their minds if as expected the ICJ does not give a clear steer: the USA and the EU Bigs unwisely created this expensive and incoherent mess – let’s leave them to it.