“INTERNATIONAL AFFAIRS”KOSOVO CASE IN THE INTERNATIONAL COURT OF JUSTICE: TIME TO SHED ILLUSIONS
Ruslan Krivobok
RIA Novosti
17:32 21/07/2010
This story by Petr Iskenderov, a senior research fellow at the
Institute for Slavic Studies of the Russian Academy of Science,
Strategic Culture Foundation expert, was published in International
Affairs magazine.
On July 22, the UN International Court of Justice in the Hague will
issue its opinion on the status of Kosovo, the breakaway province
which unilaterally declared independence from Serbia on February 17,
2008. For the first time in its history, the Court is to judge on
the legality of the proclamation of independence by a territory of
a UN-member country without the consent of the latter. The ruling
is sure to set a precedent for scores of likewise cases, including
those in the post-Soviet space.
The International Court of Justice has been looking into the
legality of the unilaterally proclaimed Kosovo independence from the
standpoint of international law since the fall of 2008. The request was
submitted to the Court by the UN General Assembly following Serbia’s
demand. After heated debates, the delegations voted in Belgrade’s
favor: 77 voted for having the case examined by the International Court
of Justice, 6 voted against, and 74 abstained. The countries which
chose to abstain were mostly the EU members which at the time regarded
Kosovo’s independence as a decided matter but did agree that Serbia
had the right to present its position in the Court. The countries
which voted against were the US and Albania as the key architects of
the Kosovo independence and a number of Asia-Pacific countries.
The International Court of Justice was supposed to unveil its ruling in
April, 2010 but, as the media found out, serious disagreements surfaced
among the Court judges and the process took longer than initially
expected. Moreover, there were indications that the West deliberately
postponed the ruling to exert additional pressure on Belgrade over the
extradition of former commander of the army of Bosnian Serbs R. Mladic
to the International Criminal Tribunal for the former Yugoslavia.
At the moment it is clear that the architects of the new world order
are not going to wait any longer, especially considering that the
ruling will yet have to be examined by the UN General Assembly which
is entitled to make the final decision. Serbia’s foreign minister V.
Jeremic said the Court verdict would not put the final dot in the
dispute over Kosov. He projected that the struggle over votes in the
UN General Assembly would be much more serious. Jeremic said Belgrade
realized that it would have to face aggressive and heavily funded
Albanian propaganda and demands to drop its position, but stressed
that Serbia should do its best to preserve domestic political unity
and that the peaceful diplomatic struggle for Serbia’s territorial
integrity and a compromise over Kosovo and Metohija should continue.
Jeremic expressed the hope that the verdict of the International Court
of Justice would become a moment of truth and ring a warning to those
in Pristina who thought they would be able to tailor the international
law to their wishes. Are there real grounds for Jeremic’s optimism
and what verdict can we expect from the International Court of Justice?
One of Serbia’s officially stated objectives behind getting the case
examined by the International Court of Justice was to impede the
recognition of Kosovo’s independence across the world. To an extent,
the plan has worked. Whereas 48 countries recognized the independence
of Kosovo within the term of six months prior to the October 8,
2008 UN General Assembly’s decision to send the Kosovo case to the
International Court of Justice, only 21 country did the same over
nearly two years since the date. As of today, the independence of
Kosovo is recognized by 69 of the 192 UN countries. On the other
hand, only one country – Costa-Rica – stated officially that it may
reverse its decision depending on the Court verdict. As for the EU,
the countries still denying recognition to Kosovo are Greece, Spain,
Cyprus, Romania, and Slovakia.
Serbia’s problem is that the disposition in the International Court of
Justice happens to be the opposite of that in the UN General Assembly.
In the Court, 9 of 15 judges including the presiding one represent
Japan, Sierra Leone, Jordan, the US, Germany, France, New Zealand,
Somali, and Great Britain, namely the countries which have recognized
the independence of Kosovo. The opposite position is espoused by
Slovakia, Mexico, Morocco, Russia, Brazil, and China. Therefore,
Serbia’s other officially stated goal – to achieve international
acknowledgement of the illegitimacy of the unilateral proclamation
of independence by Kosovo – appears unrealistic.
There is information that in the past several months the International
Court of Justice judges considered three potential rulings. The
first one can be indefinitely worded, contain condemnations of both
the Kosovo unilateralism and Serbia’s politics under S. Milosevic,
and say neither Yes nor No to the independence of Kosovo. This gentle
option will materialize if Serbia capitulates in what concerns the
extradition of Mladic.
The second potential ruling, which was mainly advocated by France,
was supposed to carry the statement by International Court of Justice
that the issue is purely political and can only be addressed at the
level of the UN Security Council. The scenario does appear improbable
at least because to make such a statement the Court would not have
had to get bogged on the case since October, 2008 or hold closed
hearings in December, 2009.
There is also the third potential ruling, and the current impression is
that the majority of the judges are going to opt for it. The verdict
can be premised in the assumption that, allegedly, the Kosovo case
is unique, the coexistence of Kosovo Albanians and Serbia within a
single statehood is impossible, the talks on the status of the province
collapsed, and therefore the unilateral declaration of independence
by Kosovo – and its subsequent recognition by a number of countries –
were a forced step and a smaller evil. The verdict will be accompanied
by the dissenting opinions of some of the judges who do not recognize
the independence of Kosovo due to fundamental regards, but this will
not change the fact that the verdict will be favorable to Albanians.
By the way, Kosovo administration is absolutely convinced that the
coming verdict of the International Court of Justice will be news
to it. Kosovo foreign minister Skender Hyseni has already broadcast
the Kosovo administration’s determination to gain control over the
whole territory of the province, which practically means subduing
its northern, Serb-populated part. The verdict of the International
Court of Justice can provide a legal backing for the hard-line policy.
While the judicial contest over Kosovo is likely lost for Serbia and
the countries supporting it, the long-term repercussions of the coming
verdict and the role it can play in other conflict cases should be
assessed from a broader perspective. The conclusions and even more so
the arguments of the International Court of Justice will be studied
carefully with an eye to similar conflicts, including those in the
Caucasus and other parts of the post-Soviet space. The options open
to Russia in this context certainly deserve attention.
>>From the outset, the Russian leadership stated quite reasonably
that its decision to recognize the independence of Abkhazia and South
Ossetia was based on an understanding of the situation in the Caucasus
and not in any way on the Kosovo precedent. Nevertheless, the fact
that the International Court of Justice would express no opposition
to the independence of Kosovo would automatically weaken the West’s
case against the recognition of Abkhazia and South Ossetia by Russia.
Moreover, opportunities would arise to subject to an overhaul the
general principles of conflict resolution in the Balkan and the
Caspian regions, for example, in Bosnia, Macedonia, or Karabakh. In
fact, Russia is confronted with the following dilemma. As far as
the international law and the territorial integrity principles are
concerned, Moscow would certainly prefer to see the International
Court of Justice issue a pro-Serbian verdict, but a Realpolitik
approach can help discern alternative horizons in the situation,
and then the Serbian cause is not completely lost regardless of what
the Court eventually says. Perhaps, it is time for Moscow to shed
counterproductive illusions in domestic politics and geopolitics.
Unlike Belgrade’s efforts aimed at securing the Serbian interests
in the Balkan region and supporting Serbs in Kosovo, Bosnia and
Herzegovina and elsewhere, the plan centered around the International
Court of Justice has never looked really promising.
(Views expressed in this article reflect the author’s opinion and do
not necessarily reflect those of RIA Novosti news agency. RIA Novosti
does not vouch for facts and quotes mentioned in the story).
From: A. Papazian