Foam on the tide of time: The ICJ ruling on Kosovo

“Such declarations are no more than foam on the tide of time; they cannot allow the past to be forgotten nor a future to be built on fragments of the present.”

Judge Mohamed Bennouna, dissenting opinion, para. 69 (re. International Court of Justice, Accordance with international law of the unilateral declaration of independence in respect of Kosovo [Request for Advisory Opinion]), 22 July 2010)

The “advisory opinion” of the International Court of Justice (ICJ) that Kosovo’s declaration of independence on 17 February 2008 did not violate international law left both Kosovo and Serbia in shock: neither had expected such a clear verdict (as did very few, if any, elsewhere) and both were anticipating a complex ICJ opinion that would require a laborious “tea-leaf” reading to extract the best possible case from the legal nuances.

In the event, the fifteen-judge court’s verdict on 22 July 2010 (in a case whose advisory proceedings lasted from 1-11 December 2009) was unambiguous. In the words of the ICJ’s president, Hisashi Owada:

“The court has concluded that the adoption of the declaration of independence of the 17th of February 2008 did not violate general international law, [United Nations] Security Council Resolution 1244, or the constitutional framework. Consequently, the adoption of that declaration did not violate any applicable rule of international law.”

The judgment

In Serbia, the ICJ’s judgment left the government’s policy towards Kosovo in ruins. Since 2008, the Serbian government has argued strongly that Kosovo’s independence contravened international law, and called for new status-talks over the territory’s future; it also attached a lot of weight to the ICJ’s forthcoming decision. Yet as the verdict grew closer, and perhaps in anticipation of a negative outcome, Serbia’s foreign minister Vuk Jeremic was emphatic that Belgrade would not recognise Kosovo’s independence irrespective of the outcome. The same view was reiterated by President Boris Tadic after the court published its opinion.

The disappointment is shared across much of Serbia’s political and media spectrum. The government’s declaration to parliament, supported by MPs in a vote on 26 July, condemns the ICJ for “not having answered the substantial question on the legality of the right to secession of Kosovo Albanians” and “not having legalised the ethnically motivated attempt to secede Kosovo and Metohija from the Republic of Serbia”. For its part, the Serbian opposition blamed the government for pursuing the wrong strategy in regard to Kosovo – though it wisely refrained from proposing any alternative beyond taking to court all the countries which have recognised Kosovo. In addition, conspiracy theories circulate widely in the domestic arena suggesting that the court’s opinion reflected pressure on it from outside.

It is true that the court examined the issues at stake very narrowly. It acknowledges this to a degree in saying that the court “is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or […] whether international law generally confers an entitlement on entities […] unilaterally to break away from it” (para. 56).

In a dissenting opinion, Judge Simma argued that the court should have also addressed these wider implications; and indeed, a broader answer to the narrow question would likely have raised more ambiguities and given Serbia more space to interpret the opinion as a victory. At the same time, there is no doubt that the court addressed the question it was asked.

The effect

Moreover, the court’s clear opinion is in fact beneficial for Serbia and for stability in the western Balkans. This is in part for reasons of international politics, where there is little space to revisit the issue and to prevent more nation-states recognising Kosovo (in addition to the sixty-nine countries that have already done so). This is not to say that greater international recognition will now come smoothly; many countries worried about their own (potential) secessionist conflicts will continue to be reluctant to take such a step.

More important than these considerations is that the ICJ’s clear opinion will help Serbia at last detach itself from what had become the “phantom limb” of Kosovo. Serbia, after all, has not had effective sovereignty over Kosovo (the northern, approximately 10% of the whole, apart) since the war of March-June 1999; and even before then, its was engaged in strenuous political and military efforts to sustain its control of the territory. No opinion of the ICJ would have been able to undo this reality or led to a mass “un-recognition” of Kosovo.

The Belgrade government, in arguing for new status-talks prior to the opinion, never clarified exactly what it expected such talks to achieve. It is widely thought that the government seeks Kosovo’s partition, though it has not publicly endorsed this outcome. Now, Serbia will need to define more explicitly what it regards as its realistic goals for Kosovo.

The ICJ opinion in itself will not herald a sea-change in Serbian public opinion, but it is likely to facilitate a general coming-to-terms with the fact that Kosovo is “lost” – whereas a different opinion from the court would have further postponed such acceptance. Many Serbian intellectuals, parties and civil-society groups have since 2008 (and indeed before) been arguing for a more pragmatic approach towards Kosovo, and more moderate politicians have come to power among Kosovo Serbs, many of whom have good ties to Kosovo Albanian politicians.

The Serbian government’s insistence on maintaining the fiction of sovereignty over Kosovo has hurt Kosovo Serbs, whose parallel structures are viewed by most Kosovo authorities and Kosovo Albanian citizens as a threat to the new state. The ICJ opinion could reinforce the shift away from the radicals that for most of the 2000s dominated Kosovo Serb politics and towards a policy oriented towards meeting the needs of Kosovo Serbs.

The overspill

A moderate interpretation of this kind is far from shared by Milorad Dodik, the premier of Republika Srpska (the Bosnian Serb republic, part of the tripartite Bosnian state created out of the Dayton agreement of 1995). Dodik called the ICJ judgment a “humiliation” for Serbs and a reflection of the fact that a “powerful political force” was ranged against “Serbia and the Serbian people”. Yet despite this assessment, Dodik also saw a positive side in the opinion – for it could open the way to independence for the entity he dominates.

Indeed, an initial glance at the International Court of Justice’s finding that (in the Kosovo case at least) a declaration of independence is not illegal in international law suggests the court might invite further declarations by movements and regions that have such aspirations. However, a “domino-effect” of this kind is unlikely to occur, for three reasons.

First, the court did not open the door to the Republika Srpska’s independence. It finds that a declaration of independence that flows from a clear breach of international law is invalid; it mentions here both Northern Cyprus and United Nations Security Council resolutions that reaffirm Bosnia’s territorial integrity. The fact that the Republika Srpska was created through ethnic cleansing during the war of 1992-95 makes it more difficult for the entity to pursue its independence.

Second, the court’s opinion implies neither that a declaration of independence is inherently legal, that the context in which it takes place is legal, nor that any country is obliged to recognise any such declaration. Thus, the court returns the question of independence to where it has been resolved in the past, the sphere of international politics. The key measure of independence is not a formal declaration, but the reality and international acceptance of such a step. It is clear that there is no international support for the Bosnian Serb republic’s independence (and this is largely true of other secessionist movements in the region, and beyond).

Third, the ICJ opinion is unlikely to spur new breakaway demands. Milorad Dodik himself has been threatening to declare the Republika Srpska independent ever since he came to power in early 2006. He first sought to draw on Montenegro’s independence, then on Kosovo to build legitimacy for the claim; but without much success in either case.

The tide

The effect of the International Court of Justice finding is less that it will trigger new declarations of independence than provide reinforcement to those already committed to such a policy. And even if an advisory opinion will not usher in immediate or dramatic changes to Kosovo in terms of recognition or membership in international organisations, it is the clearest message yet to Serbia that it should reconsider its Kosovo policy.

The point may be best expressed by drawing on the poetic description of Kosovo’s declaration of independence by the Moroccan judge, Mohamed Bennouna, in his dissenting opinion. The opinion of the ICJ is itself also “foam on the tide of time”, which confirms a long-established reality in the region. Now, it is time to move on.