Kosovo: ICJ Opinion Leaves the Political Issues Unsettled

The ICJ opinion released on July 22 is most notable for having left unanswered the core political questions raised by the 2008 declaration of Kosovo independence. The ICJ answered the request of the General Assembly concerning the legality of the declaration in the most narrow manner possible. It found nothing in international law that addresses such declarations as they are essentially political acts concerning the relations between sovereign states. It also found nothing contrary to UNSCR 1244 because the declaration itself took place outside the ambit of the Resolution and the provisional institutions created by UNMIK.

The Court found (Sec 51) that the question posed by the General Assembly was “narrow and specific.” It did not ask “whether or not Kosovo has achieved statehood.” Nor did it “ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State.” The Court's decision (Sec 122) was that “adoption of the declaration of independence of 17 February 2008 did not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework. Consequently the adoption of that declaration did not violate any applicable rule of international law.” So the specific answer to a specific question was that Kosovo's UDI was not covered by international law, i.e., it was neither legal nor illegal.

Furthermore, the Court noted (Sec 56) that “it is entirely possible for a particular act ⎯ such as a unilateral declaration of independence ⎯ not to be in violation of international law without necessarily constituting the exercise of a right conferred by it.” Therefore, the Court did not confirm or establish any right to declare independence under international law nor did the Court (Secs 82-83) consider or rule on any possible right of self-determination or of succession. The Court simply found (Sec 84) that “general international law contains no applicable prohibition of declarations of independence.”

The Court reaffirmed (Secs 91-93) the continued status of UNSCR 1244 and UNMIK under and as part of international law. It also confirmed that “the Special Representative of the Secretary-General continues to exercise his functions in Kosovo.”

In a bit of somewhat tortured logic that makes sense, however, given the Court's narrow definition of its task, it found that the UDI was not forbidden by UNSCR 1244 because the declaration was beyond the purpose of the Resolution (Secs 100, 114 and 119) and was carried out by persons acting outside the Provisional Institutions established by UNMIK (Secs 109 & 121).

All of this is subject to quibbles and debate. There was some disagreement within the Court itself. But the essence of the Court's action was to rule on a limited legal aspect of the UDI. Nevertheless, it will now be used by all sides in the political struggle that remains. The Quint and Pristina will seek to use the opinion to make their case that the legality of the UDI is settled. This despite the fact that the opinion settles none of the competing political claims nor provides any guidance on how to bring closure to the continued dispute over status.

The Court decision will have one major and unavoidable impact. The decision that the UDI does not violate international law puts President Tadić in a more vulnerable position. It does so in two ways: It places him more firmly on the anvil, under the hammer of EU and US pressure to accept independence as a fait accompli or risk loosing the benefits of joining Europe. It also removes a good deal of the political cover he used to push Kosovo to the margins of Serbia's domestic agenda. Tadić' emphasis on a diplomatic response to the UDI gave everyone time to try and resolve the Kosovo issue in a way that would strengthen Serbia's European perspective as well as recognize the new Kosovo reality. But the Quint wasted this time by seeking to force the Serbs to accept their one-sided, pro-Pristina solution. Now, Tadic is left with few options but to take the diplomatic path its remaining distance – back to the UN – while having to do whatever is necessary to support the Kosovo Serbs.

The US needs to avoid the triumphalism that led George Bush to declare “mission accomplished” prematurely. Washington's allies need to be wary. Any effort to force change, to impose a preferred political solution, to subdue the north, will not work. The ICJ did not give anyone a blank check to define reality unilaterally. The only sustainable, peaceful way forward remains through dialogue and finding ways to allow practical solutions as foreseen in the UN Secretary General's six point plan.